The courts can’t put an end to illegal domestic surveillance of American citizens, the government argues, because the government cannot defend itself without jeopardizing national security.
…the lawyer [said], addressing Judge Anna Diggs Taylor of the Federal District Court, “the evidence we need to demonstrate to you that [sic] it lawful cannot be disclosed without that process itself causing grave harm to United States national security.”
Therefore, the judge needs to throw out the case.
The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department’s favorite tools in defending court challenges to its efforts to combat terrorism.
What should be clear to everyone is that the Bush administration will use the State Secrets Privilege to cover up crimes, and not just for valid reasons of national security. In other words, we can’t take them at their word that the NSA programs are so vital and so sensitive that they can’t even discuss with a judge. Even the little they have been willing to share with the judge has been handled in an extraordinary way.
Even portions of the government’s brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government “lodged” the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today’s hearing, she shook her head no when Mr. Coppolino asked her whether she had “had a chance to review our classified submission.”
There are two obstacles to the ACLU’s case. The first is the invocation of the State Secrets Privilege. The second is the issue of ‘standing’. The plaintiffs must demonstrate they are being harmed by the spying. The government has a Catch-22 answer to this too…
Mr. Coppolino said the government is not able clarify whether the plaintiffs’ fears are justified. “The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is,” he said. “Indicating that someone is not subject to surveillance is itself revealing.”
Mr. Coppolino indicated that some plaintiffs may have more reason to be concerned than others. Lawyers who represent suspected terrorists, he said, “come closer to being in the ballpark of the terrorist surveillance program.”
But here too, he said, “the critical facts necessary to adjudicate” the standing question “are subject to the state secrets privilege.”
So, there you have it. They can spy on us because we can’t prove they’re spying on us. And the courts can’t do anything to stop them and Congress can be ignored. That’s Cheney’s view of government.
Thank God this is coming out on the blog, Booman. Jeff Huber ran a diary Friday “Cheney Flies Under the Radar” about this. Cheney’s office also declared itself immune from document classification oversight last week. This stuff needs to get out! Armando’s predicament will not end American democracy, but the precedents being laid out by the OVP just may if left gone unchecked. Folks, we need to focus on this stuff and not the soap operas of the past weekend!
Also coming out here
How many times in history have government attorneys had the gall to tell a judge that he or she is so untrustworthy they’ll have to trot on down to the Justice Department to read the brief that’s there for safekeeping? And how long has Judge Taylor had to get down to Justice and read this particular brief, and still hadn’t done so?
We need a real congress to stand up and do something about actually investigating and indicting people for this, instead of just rubberstamping the latest round of outrages from the administration. How long till November 7th?
To tell a judge that she can’t be trusted to perform an in camera review of documents is outrageous, and it seems to be a calculated insult to this judge and the entire judiciary. If the material is that super-double-duper secret, send it over in a locked briefcase chained to the wrist of a Secret Service agent, and have the agent wait outside the door of the judge’s chambers while she reads it.
I’d really like to see some government lawyers cited for contempt and cooling their heels in the Republicans’ natural habitat–a jail cell.
Exactly, who has the gall to tell a Judge to walk down the street and read our brief, it is arrogance and stupidiy all rapped up in one. If I was the judge I would issue a supoena to the AG Gonzalez and make him walk the brief to her chambers. And if the AG Gonzalez does not do it to hold him in conptempt of court and watch him lose his law license.
Gonzo held in contempt of court!
I hope one of the clerks is reading this and your comment gets back to Taylor–she’d do it!
We need a real congress to stand up and do something about actually investigating and indicting people for this, instead of just rubberstamping the latest round of outrages from the administration. How long till November 7th?
Such constitutional abuses and threats taking place by a Repub controlled government and media that the American dream is really threatened more by this abuse than foreign forces, IMO. The Repub power is partly legitimate and partly stolen (2000 election) but it is real and now. Maybe things will change in Nov., but with such powerful forces and such a braindead public, I just am not sure.
However, what I wish to talk about is to look on the bright side and assume Dems will win come Nov. If we do win, it may be our last chance to make changes to prevent what we have seen happen over the last 20 years, but especially over the last 6 years! Now what STRUCTURAL changes need to be made when we do win to never again allow this kind of constitutional threats and abuse to ever happen again?
I think the changes that need to be made are to stop being soft on crime. As soon as a democrat party has subpoena power, all investigations should be started, followed through, applicable people charged, tried,& if found guilty, jailed to the fullest extent of the law.
When does phase 2 start. Why is anybody afraid of censure, or for that matter, IMPEACHMENT.
I think a housecleaning to the very top & inclusive of all involved in criminal activity regardless of party affiliation needs to be done after a legally binding statement of “NO PARDONS” is settled. We all know how much jail time anyone of us would be serving if we had done a fraction of the number of offences we`ve had to endure them committing.
Why let only the “common” criminals enjoy those expensive prisons & detention centers they keep building.
I hear you , but all you say here is dependent on an uncompromised judiciary. In light of the Karl Rove news this AM, I think it is particularly appropriate to discuss how one keeps and independent judiciary as the mainstay of constitutional protection. In other words, is it any wonder the conservatives have gone after the independence of the judiciary (as in their activist judges campaign) as target number one on their hit list.
Now I know a government is only as good as the people that form and mantain it, or you get what you deserve; however, what institutional safeguards could be added to the current paradigm to help guarantee an independent judiciary free from POLITICAL TAKEOVER?? Now that is a discussion worth having, IMO!
The problem with the government’s invoking the state secret privilege is that the case they rely on is fraudulent: the gov, it turned out years later, lied to the supremes.
The oldest trick in the book. Saying exposure will damage national security. Well gee. That was President Ford’s excuse for putting all establishment suckups on the Rockefeller Commission, charged with investigating the CIA’s domestic activities. Challenged as to why he would appoint Rockefeller, Reagan, Dillon, and others, Ford said because the investigations might stumble upon national security secrets. Like what, he was asked? “Like assassinations!” Ford blurted out, adding quickly, “That’s off the record!” (It wasn’t – it was reported widely not long after it was uttered.)
(Note that the Rockefeller committee was only asked to investigate DOMESTIC, not FOREIGN, CIA abuses, and Ford mentioned assassination. He would know, having been a Warren Commission member.)
I met a woman who told me she had testified under oath in Executive Session during the Watergate hearings. She talked about an assassination plot against an American official. The committee told her to keep her mouth shut, for the good of the country, and that talking about it would “bring down the government.” Well, she was so scared by this she left the country for 20 years! Even many years later, she was still terrified, and only talked to me hesitantly. Her information wouldn’t have brought down the government. But if true, it might have sparked a much broader house cleaning. But the public would have survived. I just think those arguments are ridiculous, self-serving, and are themselves the cause of the demise of our republic.
It’s so ironic to me that members of the party of “personal responsibility” seem least likely to take responsibility for their actions once elected or appointed into Government..!
Now that, Lisa, is truly scary.
The adminstration has trumped both the legislature and the courts. The law of the land is determined by the Attorney General.
Scary stuff.