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Supreme Court nominee Merrick Garland has strong record on government transparency

The Chicago-born Garland is a veteran of the second-most important court in the country.

Feb 29, 2020, 9:50 am*



Amrita Khalid

Government transparency groups may find an unlikely ally if President Barack Obama’s pick for the Supreme Court is confirmed.  

Legal experts say there’s evidence Chief Judge Merrick Garland favored open government in many of the decisions he made during his current tenure at the D.C. Circuit Court of Appeals. The D.C. Circuit is commonly considered to be the second-most powerful court in the country because it hears many challenges to federal regulations. As detailed by the Reporter’s Commitee for Freedom of the Press, Garland ruled on a fair number of Freedom of Information Act (FOIA) cases during his 19 years on the court, including high-profile cases on warrantless cellphone tracking and the Central Intelligence Agency’s drone-strike program. 

In a summary of his past cases on FOIA, SCOTUSblog noted that Garland displayed a preference for open government. Information privacy attorney Scott Hodes, who writes the FOIA Blog, told the Daily Dot that he agreed with SCOTUSblog’s assessment of Garland, pointing out that his decisions were either pro-plaintiff or indicated that the FOIA process was important in the release of information.

“I believe Judge Garland believes in open government and believes that the FOIA is an important part of open government,” wrote Hodes in an email to The Daily Dot.

In the case of warrantless cellphone tracking, Garland’s track record indicates he may not lend a sympathetic ear to government agencies. When the American Civil Liberties Union (ACLU) sued the Justice Department for refusing to release information on its use of warrantless cellphone tracing in prosecuting criminals, Garland ruled in favor of the civil-liberties group. Garland affirmed a lower court’s 2011 decision that ordered the Justice Department to give the ACLU court dockets of trials in which a criminal’s cellphone location data was obtained without a warrant.

In its initial FOIA request, the ACLU asked the Justice Department for the case names and docket information of criminal cases after 9/11 in which the government tracked a person’s cellphone location data without obtaining a warrant based on probable cause. Garland wasn’t swayed by the DOJ’s argument that releasing the court dockets would put the personal privacy of the criminals at risk. The Supreme Court ruled in 1989 that an individual’s criminal history records were exempt from FOIA, arguing that the personal privacy of private citizens outweighed the public interest. But Garland was of the belief that the federal government had a weaker defense this time than it did during United States Department of Justice v. Reporters Committee for Freedom of the Press.

Wrote Garland in his decision:

The Justice Department maintains that the information the plaintiffs seek is practically obscure because they cannot identify the prosecutions in which they are interested without the government’s assistance. But all that is practically obscure is information regarding the government’s policy — that is, which prosecutions involve the Department’s use of warrantless cell phone tracking, and what the underlying records show about that policy. What is not obscure is information that raises issues of personal privacy — that is, the fact that particular individuals have been convicted of or pled guilty to crimes. Reporters Committee was concerned solely about the latter; any interest in keeping the government’s own policies obscure runs directly counter to FOIA’s central purpose.

Garland backed the lower court’s decision that personal privacy protections for criminal records under FOIA didn’t apply in cases that ended in convictions or guilty pleas.

According to the Reporter’s Committee for the Freedom of the Press:

The court held disclosure of the docket information in cases that ended in convictions or guilty pleas implicated slight privacy interests, but that those weak privacy interests were outweighed by the significant public interest in disclosure, given the considerable public interest in the use of and justification for warrantless cellphone tracking and the considerable information disclosure would provide on the use, details, and efficacy of cellphone tracking.

Another one of Garland’s decisions in the D.C. Circuit helped shine light on the CIA’s drone program. The district court backed the CIA when they refused to either confirm or deny the U.S. government’s use of drones to kill targeted people overseas. But Garland agreed with the ACLU that this response by the CIA would not hold up. Given the sheer number of public statements by then-CIA Director Leon Panetta and other public officials on the drone program’s existence, the D.C. Circuit ruled in 2013 that it was “implausible that the CIA does not possess a single document on the subject of drone strikes.”

In his opinion, Garland stated that the CIA went too far in its use of the “Glomar doctrine”—when government agencies deny FOIA requests for national security purposes.

Garland rebuked the CIA for its secrecy on drone strikes, essentially arguing that no reasonable person would believe the CIA drone program didn’t exist:

The Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA exemptions that flows from their purpose rather than their express language. In this case, the CIA asked the courts to stretch that doctrine too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. “There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men” and women.  

The Reporter’s Committee for Freedom of the Press noted that while Garland’s decisions on FOIA cases “did not always favor openness,” they generally show a “commitment to government accountability.”

Not much has been said yet by government accountability and watchdog groups on Garland’s pro-transparency track record. Watchdog group Public Citizen told the Daily Dot that since its lawyers argue before the Supreme Court, they refrain from commenting on the court’s nominees.

“It couldn’t be simpler: The president has nominated a U.S. Supreme Court justice,” the group said in a recent press release. “Now the U.S. Senate should provide or withhold its consent through an up-or-down vote on the nominee.”

No matter where you stand on Garland’s nomination, that doesn’t look likely.  

Photo via US Govt Work/Wikipedia (PD) |Matt Wade/Flickr (CC BY SA 2.0) | Remix by Jason Reed

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*First Published: Mar 23, 2016, 12:51 pm