Judicial Micro-Management of National Security Information
Stephen I. Landman
Catholic University of America (CUA) - Columbus School of Law
December 1, 2009
A recent decision by U.S. District Judge Vaughn R. Walker in the Northern District of California, al Haramain Islamic Foundation, Inc. v. Bush, has revived a question of national security law and policy long thought to be settled - is control over access to classified information entrusted to the sole discretion of the Executive Branch, and if so can the Judiciary review that determination? Although this case began as an attempt to challenge the constitutionality of the recently discovered Terrorist Surveillance Program (“TSP”), it may present the U.S. Court of Appeals for the Ninth Circuit with an opportunity to rule on the ability of the Executive Branch to protect sensitive military and national security information.
This article will evaluate the District Court’s recent discovery orders in al Haramain Islamic Foundation, Inc. v. Bush, focusing on the debate that has ensued over which branch of the United States Government is entrusted with control over access to sensitive national security information. Part I of this article will detail the background and procedural history of the al Haramain litigation, highlighting the facts and circumstances that make the plaintiff unique in the multitude of challenges to the Bush Administration’s Terrorist Surveillance Program. Part II examines the debate over access to classified documents generally as well as the specific issues highlighted by the al Haramain litigation, ultimately concluding that the District court ignored long standing precedent for judicial restraint in cases involving Executive Branch determinations over access to classified material. Finally, Part III proposes a variety of possible solutions that each of the coordinate branches could undertake to resolve the underlying dispute in the al Haramain litigation.
Keywords: al Haramain, Terrorist Surveillance Program, TSP, Classification Procedures, Accss to Classified Information, State Secrets Privilegeworking papers series
Date posted: April 18, 2010
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