My take:
On Wednesday, October 5, 2022 at 11:34:43 PM UTC-5, Rich Wales wrote:
Do courts (in the US) have the ability to overrule the intelligence community and order the declassification and release of classified documents without regard to the normal rules for safeguarding sensitive material?
The only lawful, possible paths I see for a court to declassify a document are either by ruling:
-- that the Presidential Executive Order (EO 13526) for classifying a document was not followed.
or
-- that the Presidential Executive Order for declassifying a document (EO 12356), in part or in whole, is unconstitutional. I figure this could have the effect of a court allowing a President to declassify any way he or she wants, to the extent that this
way is logical, including document-able, and does not lead to chaos.
A President, while in office, can rescind or re-write Executive Orders at any time. After all, it is the Office of the President that issues executive orders. But I think a court would say that the validity of a rescission or re-write depends on whether
the President followed the proper procedures. So far one Court of Appeals has said exactly this as follows:
In the present dispute between Donald Trump and the government, Trump has said to the press that he has de-classified certain or all documents. If a court does // not // take the position that the procedures in, let's face it, Trump's Office's executive
orders must be followed, then I think the court would be creating a Gordian Knot. Said Gordian Knot cannot, by definition, be undone using the usual rules of the law. Instead, the knot is undone by slicing heavy-handedly through the knot, and so all the
legal rules, with something like a butcher knife. In other words, to rule that Trump did de-classify these documents, the court would have to throw out a lot of law. The courts do not like to do this.
In September, the U. S. Court of Appeals for the 11th Circuit flatly asserted that Trump had presented no evidence of de-classifying documents. This to me implies that the Court believes that, yup, Mr. Trump, there are procedures to follow for documents
to become de-classified. Furthermore Mr. Trump, documents marked classified cannot become declassified merely by your thinking in your head that they are declassified.
I think a plaintiff could certainly challenge whether the procedure to classify was followed. I expect a court might very well say an agency or individual did not do xyz as required by the EO to classify a document, so the document is not classified. (
Though for national security reasons, I would also expect the court might very well give the agency or individual another crack at classifying the document properly.)
If SCOTUS were to order such a release, is it realistic to imagine a standoff between officers of the court (trying to execute a court order to seize such material) and officers of the intelligence community (trying to safeguard national security)?
Not to be too cute, but I think what you describe right above is more properly called a coup d'etat. In the event of such a coup, the law is whatever the people in power say it is.
I do not know if Judge Cannon is an idiot. Many leading Democratic Senators voted for Cannon's confirmation. I know that the two Trump appointees to the 11th Circuit were confirmed by a vote solely of GOPers. The Appeals Court Trump appointees certainly
flatly rejected any insinuation that Trump had declassified anything.
If forced to bet, I think a majority of SCOTUS will reject Trump's latest appeal. If a certain Justice smartens up to how his wife is embarrassing him, it could even be a 9-0 decision. But I figure it will be at least a 5-4 decision.
https://dornsife.usc.edu/news/stories/2609/what-is-classified-information-and-who-gets-to-decide/#:~:text=Classified%20information%20is%20that%20which,mass%20destruction%20and%20their%20proliferation.
https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html
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