The Executive Branch’s Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney’s rancid flesh.
Courts Get to Determine Classified Information for Their Trials
First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors–as distinct from elites like Cheney–could determine what counted as classified information.
Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.
Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.
A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.
(Someone’s been reading their bmaz.)
Lawyers Get to See Classified Information Their Clients Need for Their Defense
Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that.
So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.
Back to al-Haramain: Obama Argues against Article III Review
And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.