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.
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).
ReplyDeleteThe plaintiffs addressed this in their reply brief:
"The substantial burden on plaintiffs' prifessional activities constitutes an injury sufficient to support standing."
...
"Finally, the government places great weight on plaintiffs' inability to show that they themselves were wiretapped. This question is a red herring. The concrete injuries to plaintiffs' abilities to carry out their professional duties exist entirely independently of whether plaintiffs are being wiretapped."
Just the perception that they may be wiretapped, whtherer or not they are, causes discrete and individualized harm.
Cheers,
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.
ReplyDeleteIndeed. See my comment about this here.
Cheers,
One further point:
ReplyDeleteBecause whether warrantless surveillances contravene FISA -- and therefore, whether such is illegal inder FISA law -- is a matter of law and not of fact. Thus it would be hard to argue that this is a "state secret". The moment we start saying that what the law says (which is an inevitable consequent of saying what it allows) is a "state secret", we've entered the realm of Kafka's worst nightmares....
Cheers,
Can't resist; one final comment:
ReplyDeleteWhile there's a little bit of legal theory here (e.g. the distinction between "law" and "fact" in the judicial system, and the criteria for a SJ motion [as well as who decides that]), it's not all that hard to explain. You'd think that with all these "lawyer" pundits on the MSM, including some supposed Constitutional scholars and such, that at least one wouldn't be too bone-headed to explain this and start raising the issue....
*crickets chirping* (so far)
Cheers,
Fourteen Defining Characteristics Of Fascism
ReplyDelete1. Powerful and Continuing Nationalism
2. Disdain for the Recognition of Human Rights
3. Identification of Enemies as a Unifying Cause
4. Supremacy of the Military
5. Rampant Sexism
6. Controlled Mass Media
7. Obsession with National Security
8. Religion and Government are Intertwined
9. Corporate Power is Protected
10. Labor Power is Suppressed
11. Disdain for Intellectuals and the Arts
12. Obsession with Crime and Punishment
13. Rampant Cronyism and Corruption
14. Fraudulent Elections
themajor:
ReplyDeleteIs your response a case of deflection, projection or just plain lying? Get over yourself.
As "the major" ably demonstrated, we are all incredibly privileged that we are able to watch the end of the American Republic in real time.
ReplyDeleteI suffer from clinical depression, and have been having a bout of relatively severe depression lately, compounded by grief at the impending death of my father. So I'm aware that my thinking is not as sharp as it could be, and in particular that I tend to magnify bad news and disregard or downplay good news.
ReplyDeleteWith that in mind, can someone provide reason to believe that this administration would respect the outcome of elections unfavorable to it?
Obviously the administration prefers not to deal with courts, when possible, as with the captives it dumped abroad so as to avoid hearings about their status. But then when something inconvenient does come along, like legislation, they simply ignore it and carry on. And given the unitary executive theory and the war-powers rationale, I can't find any reason to believe that they would let elections remove them or their key lackeys in Congress. After all, that would undermine the prosecution of the war.
Am I missing something here, or is the hope of changing administrations founded on, well, hope rather than evidence?
The Orwellian bullshit this post addresses reminded me of a half-finished post of my own, which is now posted.
ReplyDeleteThe Bush Administration's designation for people that have been detained at Gitmo for years without charge and are set to be released isn't "innocent victim of U.S. abuse," it's "no longer enemy combatant. That's totalitarian rhetoric boiled down to its essence. If the government says you're guilty, then even if you miraculously prove your innocence in a court of law, you're still guilty (or "no longer" guilty, which amounts to the same thing in practice).
June is Torture Awareness Month, and I hope you'll take some time out of your day to read about the issue (and, ideally, to blog about it yourself). This blog has been a great resource on surveillance policy, but the other prong of Bush's dictatorial ascendance has been detention policy, which may be even more important in the end.
Shooter
ReplyDeleteThis is about eavesdropping. It was filed before the other scandal was revealed.
Their argument is that their freedom of speech is being damaged by government intimidation and the threat of misuse.
It's actually not a bad argument, but I don't know how much legal weight it has.
Standing is a pretty arcane issue.
shooter242:
ReplyDeleteSomebody help me out here.
Not sure that's possible. First you have to help yourself. See below.
2. Doesn't one have to demonstrate harm in order to sue another?
Yes. But the plaintiff's reply brief (link in my first post above; top'o'da'page) covers that. Please do at least try to read, first, OK? Certainly give it the ol' college try before you start whining. Thanks in advance.
Cheers,
Democratic Polticians, Major.
ReplyDeleteOr don't you know how to use adjectives properly? It's the democratic party, because the noun in this case is the party, which is adjectively "democratic." But a member of the party, becomes a democrat.
Glad we could clear that up. Wouldn't want you to look like a moron, going around referring to elections as the "democrat process" instead of the "democratic process" or say you saw a "fantast movie" instead of a "fantastic" one.
shooter242:
ReplyDeleteIf you can't see the great personal harm that an individual could suffer just from having their phone records compromised, you're a moron.
It really is that simple, a list of phone numbers alone is hugely valueable intelligence and I really refuse to believe you're that stupid to fail to see how that could hurt someone.
Hitchens as a journalist (or as he calls himself) has sources, who might call him...they will no longer do so, knowing the government can figure out EASILY who they are. Of course you don't care about that damage because you think all government leakers are traitors anyway, but the harm is to Hitchens whose sources have dried up.
Never mind transcripts, or tapes of calls - just knowing the call existed is harm.
How about a moderate republican, working secretly with a democrat on a piece of legislation not favoured by the majority leader - couldn't he be harmed just from the phone records showing the calls between him and the democrat?
If you persist in the fiction that no harm comes from your phone records being snooped on, I challenge you to post your personal phone records here, and let's see what information we can glean from them. I guarantee we can figure out who 90% of your calls were to or from. After all, if you've done nothing wrong, then you have nothing to hide right?
My suspicion about the ACLU case and whether it can be resolved without reference to protection to state secrets is that, given the DOJ's failure to file the state secrets motion as their first paper indicates the DOJ did not think it was meritorious, but only filed it as an afterthought and as part of an overarching strategy devolving, like, from AG himself.
ReplyDeleteNow is a deciding moment in history. Perhaps the whole survival of our democracy depends upon Judge Vaughn R. Walker in California and Judge Ana Diggs Taylor in Michigan.
ReplyDeleteIf these two judges accede to the government's state secret argument, the magic of the American democracy that flows from free speech and the burden of government to follow the laws will pass away. Bush&Co believe that they have absolute power to do any act they please regardless of law. If the judges accede, then Bush&Co will KNOW that their belief is accurate and the democracy will be at an end. There will remain no limits against the power of the government over the individual.
There is a very high probability that NSA or some other secret agency is tapping, recording, sifting, and sorting all domestic calls and matching the information gleaned in social networking databases. Soon, if the judges fail us, the interface of this surveillence system will allow a government enforcer the ability to call up a highly detailed record of the life and social contacts of each and every individual in the United States and many foreign countries from anywhere with the flick of a few buttons.
As time passes, this profile will be used to suppress all resistance to Bush&Co. The changes will at first be subtle, but after a very few more years, the loss of liberty will be dramatic. Many of the tools necessary to support the tyranny are already law and in place. We soon will all have national identity cards thanks to the Real ID Act. The government will soon establish executive detention without due process when the Supreme Court finishes its current docket. Control over internet content will be secured by cooperative private filtering when the current legislation defeating net neutrality is passed. Bush&Co has already mastered the demise of the voting process in two elections and has near total control of election outcomes as will be demonstrated in the upcoming congressional elections. We are now in a state of perpetual war that facilitates the use of draconian war powers against individuals that will begin to be exercised shortly after the next "terrorist act" within the US.
Congress has been completely tamed. The local district courts are the last hope.
We will soon see if the coup is complete.
NSADirectDial said...
ReplyDeleteNow is a deciding moment in history. Perhaps the whole survival of our democracy depends upon Judge Vaughn R. Walker in California and Judge Ana Diggs Taylor in Michigan.
Perhaps the next deciding moment will come when the first military officer is court-martialed and shot for refusing to obey a clearly illegal order. By that time it will be too late. We can be sure it won't be on the news; such a thing will be deemed a state secret, and all proceedings, if any, will be in a secret tribunal. You can call me paranoid if you like, but I have seen nothing to indicate that the present administration recognizes any limitations on their actions. Geo. W. Bush makes Nixon look like Ghandi.
Perhaps relatives of the deceased will receive notification, in the form of a bill for the bullet used to execute their loved one. That's what totalitarian regimes do.
Daniel W. Gerous sais, "I have seen nothing to indicate that the present administration recognizes any limitations on their actions."
ReplyDeleteAs with you, I do not think that Bush&Co sees any limits on its powers. I keep looking for some hope somewhere that the coup is not complete already. Right now, I think that Bush&Co has total freedom to make its own rules and do what it wishes. We are in a period of exploration and testing wherein Bush&Co are stretching to see what it can get away with. So far, there is simply no resistence and practically no hint that the general populous is aware of the import of the laws and precedents that have been locked in during the this administration.
Unless some meme develops that stops the progress, the American democracy is dead even though some sham trapping will remain to continue to fool the people into thinking they are free patriots. The ware in Iraq has been a fully effective foil to hide the true risk to the democracy that lies in the creation of the infrastructure of the new, technological totalitarian state, a totalitarianism that will be more effective and efficient than any that have ever preceded it.
In this post, I use the term "Bush&Co" to include, not only both presidents Bush, but their narrow cabal against the American democracy.
At this point, there is no one on the horizon who has the charisma of GWB to replace him except Hillary who may or may not be a member of the company. Given the lack of a viable candidate, I would not be surprised to see a proposal to rescind Amendment XXII.
Or, perhaps, the 2008 election will just fail, either by terrorism or judicial fiat.
I fear that the American people can never be awakened from their stupor.
After my last post, I searche Thomas at the Library of Congress. A house resolution to repeal the 22nd Amendment has already been introduced into the house in House Joint Resolution 24. In Thomas, seardh "HJ 24 IH" to get to the text.
ReplyDeleteScary, but not surprising.
I petitioned the Supreme Court for an issuance of an extraordinary writ of mandamus. I told the court that they should issue the writ because public ministers were violating the constitution and federal law (FISA) according to their own public statements. They have this power under Article three.
ReplyDeleteI recieved a prompt reply that recited Rule 20.1 "the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court."
It recited this rule and just about nothing else.
I'm having trouble understanding what exactly "in aid of the court's appellate jurisdiction" means and even if I came up with a good answer to that would the clerk just send it back to me again for the same reasons because of the other inter locking and circular requirements that they are asking for?
My argument was very basic and straight forward. The president, attorney general, and Hayden have publicly admitted to violating the fourth amendment by not submitting searches to the FISA court. Kennedy has an opinion that basically says, FISA is constitutional and the best way to implement eavesdropping so as to not violate the constitution so I used that case to illustrate that FISA is completely reasonable. And then I showed why the Authorization to Use Militrary Force could not possibly authorize the president to implement his warrantless spying program because congress does not have the power to authorize the violation of the fourth amendment.
Does Rule 20.1 make a direct hit on this "standing" issue? And, can anyone point me to any cases that make a clear and cogent argument on how to overcome this rule?
I ask this because I suck at Lexis-Nexis (I haven't taken advanced legal research yet) and I would like to just amend my petition by simply attaching an answer to the Rule 20.1 issue. I purposely did the petition down and dirty and hand filled in most of the form that showed that I was In Forma Pauperis and just inserted my printed arguments in the order that the form the supreme court required.
It was fun but ultimately unsuccessful so far. Does anyone think that a direct petition to the supreme court is a useful idea or are they just going to let the appeals courts be the gate keepers?
I think they might be dying to jump on this case but need the right petition to move forward. I say that because the administration is pretty much telling the judicial branch they are irrelevant when ever the president decides that to the case.
Any thoughts would be greatly appreciated.
Oh, and Anonymous Liberal. Thanks again for pointing me in the right direction when I started this petition a few weeks back.
Tell Mr Arar this- he would tell you that although he could show injury, his suit was dismissed as well, notwithstanding his kidnaping rendering torture being put in a coffin in Syria and then released. When the US government breaks the law it is all ok no judicial review whatsoever.
ReplyDeletedan:
ReplyDelete...but the harm is to Hitchens whose sources have dried up.
Good thing the bottle hasn't, eh?
;-)
That being said, I support his efforts in this lawsuit, along with the other named plaintiffs and anyone similarly situated.
Cheers,
Disenchanted Dave Thanks for your comments. Something you mentioned prompted me to look some things up . . ."The Bush Administration's designation for people that have been detained at Gitmo for years without charge and are set to be released isn't "innocent victim of U.S. abuse," it's "no longer enemy combatant.
ReplyDeleteAs you well state, the "Orwellian bullshit" . . .It doesn't matter what the US call them, they're still belligerents, entitled to protections under Geneva. Article 3 of Geneva doesn't mention "unlawful combatant," but belligerent. [ Ref: Note 1.]
This DC-legal crew needs to have its legal arguments challenged at The Hague. Given its likely their legal arguments can't stand up, it remains unclear which specific US personnel will be subject to sanctions at The Hague.
How many times have we heard about people randomly being picked up and sent to Guantanamo? Even locals are still entitled to protections:
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Ref
. . .
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.Ref
While the US justifies more abuse and violation of the laws, the EU is actively discussing a military intervention and a formal document is forthcoming to both House of Congress stating the legal issues and giving fair warning.
The stock market is off close to a 1000 pts in the last three weeks and hardy whisper in the main stream press. Trillions of dollars wiped away and yawns from our darlings of the press relentlessly pursue the Bush carrot dangling in front. Pathetic.
ReplyDeleteif the Flag Desecration Amendment passes, I'm going to be awfully tempted to burn one for the first time, if for no other reason than to protest the passage of such a mind-bogglingly stupid amendment. And I have a feeling I won't be alone.
ReplyDeleteNo you wont be alone. I will stand right next to you with my own flag (my private property to do with as I see fit) and a lighter. The reason I would do so is for the very reason you state, after never ever even contemplating or being inclined to burn a flag.
Let's start thinking about a flag-burning party, just in case.
Any Dem voting in favor of this Amendment needs to be voted out of office, by the way. This is the stuff of police states and the GOP, NOT a party that should be representing the actual people and liberty.