Judiciary reminds Bush administration that it exists

by Glenn Greenwald

This morning, a federal judge in Michigan is hearing a potentially significant Oral Argument on the legality and constitutionality of the administration's warrantless eavesdropping program. The lawsuit was brought by the ACLU on behalf of Arab-Americans in the Detroit area and others who claim that the mere existence of the program violates their free speech and privacy rights by making them reluctant to speak freely, due to fear of having their private conversations illegally intercepted by the Bush administration. The hearing this morning is to argue the plaintiffs' motion for an order compelling the administration to immediately cease its warrantless eavesdropping.

The lawsuit cannot maintain a direct attack on the legality of warrantless eavesdropping because it is very difficult to find a plaintiff who has "standing" to challenge the program, because nobody knows who has been the target of the eavesdropping and, therefore, no individual can prove that they were injured by the program. The theory of the lawsuit -- that its mere existence deters citizens from freely exercising their free speech rights -- is a mildly creative tactic for overcoming this legal hurdle. The lawsuit is an attempt to enable the federal judiciary to adjudicate the legality of the NSA program even in the absence of a plaintiff who was demonstrably subject to warrantless eavesdropping.

Although I am not, for a variety of reason, particularly optimistic about the likelihood that this suit will yield meaningful results, there are two significant developments to note. The first is that the District Court Judge presiding over the suit agreed to hear the ACLU's motion on the substance of the claim even though the Bush administration -- as it always does in these cases -- frivolously invoked the "state secrets" doctrine in demanding that the lawsuit be dismissed. Typically, once the Government invokes that doctrine, everything else is put on hold and, almost always, the court then dismisses the lawsuit, on the ground that the Executive branch knows better than the judiciary what will jeopardize state secrets.

Here, though, the Judge ruled that she would first hear the plaintiffs' Motion to enjoin the warrantless eavesdropping program (which was filed before the administration's Motion to Dismiss based on the "state secrets" doctrine), and only then hear the administration's motion to dismiss. Thus, for the first time ever, a federal court this morning is entertaining substantive arguments as to the legality of warrantless eavesdropping.

It is possible that the court's decision to hear this motion was a purely procedural ruling -- i.e., that because the plaintiffs' motion was filed first (before the administration's motion to dismiss), it ought to be heard first. But it seems far more likely that there is a substantive aspect to the court's refusal to simply freeze everything and listen to nothing other than the "state secrets" claim. Even once the court ruled that it would hear the plaintiffs' motion first, the administration continued to argue vigorously that the court is required to hear its "state secrets" motion first:

Justice Department lawyers filed a new motion June 2 asking the judge to clarify her order and to once again consider their arguments on standing and "state secrets" before considering any other issue. Taylor is expected to respond at today's hearing.

If the plaintiffs overcome the government's argument, it will be highly unusual. Justice Department attorneys almost always prevail when they invoke the "state secrets" privilege, even when judges acknowledge a plaintiff raises serious issues.

The judge's refusal to adhere to that request seems to signal that the judge does not view the mere recitation of the words "state secrets" as a signal that her power to rule has been magically stripped away without any analysis as to the validity of that claim. It may be a small rumbling indicating that the judiciary -- like a handful of members of Congress -- are beginning to find the courage to assert their institutional role in our government.

Here, the very invocation of the "state secrets" doctrine by the administration is simply ludicrous. The President already acknowledged the existence and substance of the program, and the lawsuit's theory is that this knowledge, by itself, chills plaintiffs' free speech and privacy rights. No further disclosures are needed to adjudicate the legality of the government's conduct. But no matter. Judges almost always defer to the "state secrets" claim. But perhaps some courts will start to recognize that the doctrine here -- like so much else in our political life - is being radically exploited by an administration which virtually never cares about national security but acts to protect only its political interests:

The privilege has been used most often by officials in the executive branch of government, said William G. Weaver, an attorney and a political science professor at the University of Texas, El Paso, who has co-written a scholarly article on the subject."It is the most powerful privilege available to the president," Weaver said. "If it is properly invoked, it wins every single time."

Before the Sept. 11 attacks, Weaver said, government lawyers generally used the privilege at the instigation of mid-level officials who did not want a program's operational details revealed.

In recent years, though, it has become "a top-down enterprise," he said. "The privilege has been transformed into a political device to protect the president from embarrassment."

To the extent that this lawsuit chips away even minimally at the prior invulnerability of this manipulative tactic, it will have contributed substantial value.

The second notable aspect of this development is the mere existence of the argument itself. The principal focus of the NSA scandal has been on political and Congressional developments -- the machinations in the Senate, the prospect for investigations and new legislative cover-ups, etc. But when we have a president who is systematically and deliberately breaking the law, the judiciary has a substantial role to play in checking that illegal behavior.

Although the judiciary has been at least as deferential over the last five years as the meek and compliant Congress has been, judicial challenges to the administration's lawlessness provide, at least in theory, a separate mechanism for holding the administration accountable for its lawbreaking. The fact that the administration is forced to defend the legality of its behavior in a federal court this morning is a helpful and necessary reminder that we are supposed to have other branches of government imposing checks and limitations on the lawlessness of the president.

UPDATE: The dates and events for my book tour are now posted on the Working Assets site, which updates the schedule regularly as more events are confirmed. I'm currently in Washington and will be at a book signing tomorrow, from 10:45-11:00 a.m., at the Washington Hilton Hotel, followed by a panel discussion of the blogosphere from 11:00 a.m.-12:15 p.m. as part of the Take Back America Conference.

After DC, I will be in New York and will post the events then. Just a couple of notes: (1) This Saturday, June 17, at 8:00 p.m., I am doing a book talk/book reading at the Upper West Side YMCA (5 W. 63rd Street) as part of the Writer's Voice Series. That should be a great event, and I hope readers of this blog in NYC will attend; (2) I will be on the Al Franken Show on Monday, June 19, from 1:30-2:00 p.m.