Two weeks ago, Judge Richard W. Roberts issued an extraordinary ruling that a secret government document was not properly classified and must therefore be released under the Freedom of Information Act. (“Court Says Agency Classification Decision is Not ‘Logical’,” Secrecy News, March 2.)
Now the question is whether the government will accept the ruling and abide by it, or challenge it.
That hasn’t been decided yet. The U.S. Trade Representative (USTR), which classified the document, “has not yet determined whether to appeal the February 29 judgment,” the court was told in a stipulation filed this week.
But the choice that the government makes could have far-reaching implications. What is at stake is whether or not the Freedom of Information Act can serve as an effective means to curb overclassification.
If Judge Roberts’ ruling stands, and the document is released, the judicial system will have succeeded in correcting a manifest classification error despite the prior failure of all executive branch oversight mechanisms to do so. The ruling would serve as a precedent and an inspiration for further classification challenges.
The document itself is probably of limited interest and its disclosure of little concern to the Administration. But the court ruling requiring its disclosure is a different matter that raises potentially thorny issues.
There is a school of thought which holds that national security classification is exclusively an executive branch function that stems from the President’s constitutional role as commander-in-chief of the armed forces. From this point of view, any judicial incursion on classification decisions is an intolerable infringement on presidential authority.
Taken to an extreme, this perspective would imply that the Freedom of Information Act itself is unconstitutional. The FOIA allows for independent judicial review of executive branch classification decisions, and creates at least the possibility that those decisions will be overturned, as in the present case.
This conflict between the FOIA and an expansive view of executive authority normally remains latent, because judges almost never order an agency to release a classified document. Instead, courts typically defer to the executive on questions of national security. In close cases, and when an agency senses that its own position is weak, it will often declassify and release a document without being ordered by the court to do so. It thereby preserves at least the appearance of autonomy and exclusivity in classification policy.
On the rare occasions when a court has ordered declassification or release of a classified document, the decision has usually been vacated on appeal or mooted for technical reasons. See this 1995 Justice Department “History of Exemption 1 Disclosure Orders.” With Judge Roberts’ ruling, that history will need to be revised.
New mechanisms for correcting classification errors and abuses are needed throughout the national security classification system. Judge Roberts’ decision holds the promise that the courts could serve as one such mechanism. But this promise will be realized only if the Obama Administration accepts the principle of judicial review of classification decisions.
A supply-side tax credit (STC) could offer a tax incentive to material suppliers and professional service consultants that provide goods or services to affordable housing projects.
The Department of Housing and Urban Development (HUD), Department of Commerce, and Department of Transportation should jointly develop and manage a data resource—a Housing Production Dashboard—to track housing production within and across states.
Exempting affordable housing from volume caps would address the underlying issue and have the greatest impact in this housing emergency.
To increase the supply of affordable homes, Congress should make greater investments in the National Housing Trust Fund (HTF).