10 September 2005


In the blue corner, from Hartford, Connecticut, weighing in at twenty-nine pages, we have an opinion from the Hon. Jaaaaaaanet Haaaaaaaaaall! She holds that unlimited government assertions of secrecy must yield to the facts in the face of the First Amendment!1

In the red corner, from Richmond, Virginia, weighing in at twenty-five pages, we have an opinion from the Hon. Michaaaaaael Luttiiiiiiiiiiiig! He and two of his colleagues hold that unlimited government power to detain terrorism suspects in wartime need never yield to the facts in the face of any constitutional rights!2

Perhaps it's a bit unfair to proclaim "blue" and "red" here. After all, Lyndon Johnson (with all the abuses that occurred under his administration) was a Democrat, and Harry Blackmun was a Republican. As the somewhat sarcastic introduction above indicates, the real difference between the two opinions rests not on doctrine, nor respect for civil liberties, nor priority of need—all of which are very much the same between the two cases, at least as they have been publicly disclosed—but on whether the facts need intrude on policy. On the one hand, Judge Hall, after thoroughly reviewing classified documents to which the plaintiff's (library that would disclose that it had been served a Patriot Act subpoena) counsel has had no access, avers that

The government argues that it has an interest in preventing the disclosure of Doe's identity because disclosure of the NSL [National Security Letter] recipient's identity may, inter alia, permit the subject of the NSL, or those involved in the subject matter of the NSL, to deduce that the government is aware of their/his/her identity, leading them to flee or go deeper under cover. Even affording the government deference in its judgment about national security concerns, the court cannot conclude on the record in this case that, in these circumstances, the government has a compelling interest in barring the disclosure of Doe's identity. Nothing specific about this investigation has been put before the court that supports the conclusion that revealing Doe's identity will harm it. The record supplied by the defendants suggests that the disclosure of Doe's identity may or could harm investigations related to national security generally. Just such a speculative record has been rejected in the past by the Supreme Court in the context of a claim of national security.

Further, the information that is before the court suggests strongly that revealing Doe's identity will not harm the investigation.

Doe v. Gonzales, No. 05-cv-1256, slip op. at 16–17 (citations omitted, emphasis added). On the other hand, the Judge Luttig essentially refuses to review the factual record.

The district court acknowledged the need to defer to the President's determination that Padilla's detention is necessary and appropriate in the interest of national security. However, we believe that the district court ultimately accorded insufficient deference to that determination, effectively imposing upon the President the equivalent of a least-restrictive-means test. To subject to such exacting scrutiny the President's determination that criminal prosecution would not adequately protect the Nation's security at a very minimum fails to accord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress, such as the [Authorization for Use of Military Force].

Padilla v. Hanft, No. 05-6396, slip op. at (citations omitted).

The Fourth Circuit's opinion grievously underestimates the nature, scope, and purpose of judicial review. The whole point of vesting a judicial review power outside of the elective branches of government was to distinguish between what we might now call "wholesale" and "retail" application of law. On the one hand, Congress may not make factual findings as to particular past events for the purpose of punishing or restricting an individual on that basis; the Ex post Facto and attainder clauses make this clear. On the other hand, the Executive is not a factfinding body except as that power is explicitly delegated to it by Congress; that is the whole point that the Chevron3 decision was even necessary. If Congress didn't have the power to make such findings, neither can it delegate such power to the Executive.

The battle between fundamentalism and democratic values essentially reduces to the question of whether man is to be governed in all respects by unreviewable proclamations of deity commands as applied by unelected theocrats to particular circumstances, or instead by careful review of specific circumstances by fallible humans selected for that role. Judge Luttig (and his colleagues Judge Michael and Judge Traxler) have just demonstrated their allegiance to the former view—or, at least, their failure to understand the latter—and thereby justified the "nuclear option" should any of them be nominated to a vacancy on the Supreme Court.

  1. The actual opinion is available from the District of Connecticut's website.
  2. The actual opinion is available from the Fourth Circuit's website.
  3. Chevron USA v. Natural Res. Def. Council, 467 U.S. 837 (1984).