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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, June 13, 2006

Orwellian Doublespeak

By Anonymous Liberal

That's the phrase the executive director of the ACLU, Anthony Romero, used to describe the arguments put forth by the Bush administration today in a hearing before a federal judge in a case challenging the legality of the NSA's warrantless surveillance program. It's hard to think of a more apt description.

The administration's lawyers told the judge that "the evidence we need to demonstrate to you that [the NSA program] is lawful cannot be disclosed without that process itself causing grave harm to United States national security." Therefore, they contended, the case must be dismissed.

Alternatively, the government argued that the case should be dismissed because the plaintiffs have failed to establish that they personally were spied upon under the program (and therefore lack legal standing to sue). The administration claimed its hands were tied in this regard as well: "The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is. Indicating that someone is not subject to surveillance is itself revealing."

Got that? A suit alleging that the Bush administration is engaged in ongoing, widespread violations of our criminal laws must be dismissed because the alleged wrongdoer, the Bush administration, asserts that any adjudication of the issue would be counterproductive. In other words, under the administration's legal theory, the administration gets to determine unilaterally which of its actions will be subject to judicial review.

And while it assures us that the program is perfectly legal, the administration claims it cannot even divulge whether the named plaintiffs (Christopher Hitchens, Larry Diamond, etc.) were spied upon without harming national security. As Jack Balkin put it:

If the issue were not so grave, the government's
arguments would simply be farcical. If the federal
judiciary accepts the government's argument to
dismiss the case without requiring the government
to make somewhat finer grained distinctions about
what it can and cannot disclose, it might as well
close up shop. . . .

Letting the government march into court and shut
down inquiries into its possibly illegal actions on its
mere say-so creates the worst of bad incentives.
If the government can do so in this case, it can and
will do the same thing whenever the legality of its
actions is challenged in the future, and then we will
be well down the road to the destruction of our
constitutional system of checks and balances.
What is at stake in this case is the principle that the
Executive, like all other government servants, is
subject to the rule of law.

This is all unquestionably true, particularly with respect to a case such as this one, where all the legally relevant facts are already in the public domain. There are undoubtedly many details about the program that have not yet been reported, but the administration's claim that these details are somehow crucial to the adjudication of the legality of the program is entirely disingenuous.

The President and the Attorney General have publicly admitted that the NSA program involves exactly the sort of warrantless surveillance which FISA forbids. This is not in dispute. They claim, however, that the president has the inherent authority under article II and the statutory authority under the AUMF to disregard FISA's prohibitions. Those are purely legal arguments, the resolution of which in no way depends on the as-of-yet undisclosed details of the program.

So even if we take the administration's word that disclosure of these remaining details would be harmful to national security, it's hard to see how that matters. The government should not be allowed to invoke the "state secrets" doctrine to dispose of a case that can be litigated without reference to those "state secrets."

The position taken by the administration in this case is, quite simply, antithetical to the rule of law. The administration is not only claiming the power to disregard duly enacted laws, but to permanently exempt such decisions from judicial scrutiny. If it is successful in this endeavor, the damage to our system of government will be extensive and long-lasting.

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