NSA surveillance and the reality-based community
Cheney to awake as oversized roach...err..wait
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If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see? - Alice in Wonderland
I have to confess, the oral arguments in the Ninth Circuit Court of Appeals in San Francisco yesterday in a courtroom that poured into two overflow areas, were, in all their strangeness, at times difficult to follow, even for a practicing lawyer.
The magnificent marble hallways ideally would invite an equally sublime level of discourse, but the sad, tortured logic of the Cheney administration swirled again through the hallowed chambers of the judicial branch, spinning nowhere. The court confronted two cases brought against the administration for its massive, supra-legal domestic surveillance program, the one that may, or may not, be spying on us, and that may, or may not, even exist.
To acknowledge its mere existence - though the President may, or may not, have lied in acknowledging its existence, to throw critics and assorted other troublemakers off the scent - the government argued yesterday, in both cases, would be itself a violation of what is known as the "state secrets" privilege, and the attorneys for the government in both cases argued strenuously that the privilege is for all intents and purposes an absolute bar to litigation about those very programs - er - alleged programs.
The audacious circularity of the arguments by the executive branch brought out the sardonic wit of the judges, particularly Harry Pregerson, who repeatedly probed the government's attorneys about what oversight role, if any, would be left for the judicial branch. Pregerson noted almost wistfully, about 3,000 warrant requests that made it to the official court for surveillance activities, FISA, in 2005 and only one of those was denied, and that only in part. As Judge Margaret McKeown observed on more than one occasion, the government's argument boiled down to "trust us".
"The bottom line is, that once the executive declares that it's a state secret, that's the end of it - the king can do no wrong," Pregerson said.
Garre tried repeatedly to claim that the judicial branch should extend to the executive branch the "utmost deference" when confronted with government claims of state secrets. "Utmost deference. What does that mean? Just bow to it?" Judge Pregerson then asked Garre point blank if judges would be nothing more than a rubber stamp for executive branch state secret privilege claims.
Sentence first - verdict afterwards
The first oral arguments concerned the class action lawsuit, Hepting v. AT&T, filed by the Electronic Frontier Foundation (EFF) against the telecommunications giant for participating in the controversial secret surveillance program with the NSA. Room 641A at 611 Folsom St. in San Francisco, according to the EFF, functions as a massive data mining operation by the NSA, where splitters divert fiber optic signals into a secure NSA listening room. Although the administration has claimed that the surveillance program only targets foreign subjects, the room, if it is as alleged, is clearly capable of much, much more.
The argument surrounds a foundational element of the law - namely, whether plaintiffs under alleged surveillance even have what is called "standing" to sue for that very surveillance. Standing requires a prima facie showing of harm to an individual plaintiff. The problem, of course, is that the surveillance is secret, and the instant that a plaintiff alleges he or she has been illegally surveilled, the executive branch claims the "state secrets" privilege. This is a classic Catch-22, and it has so far made it impossible for Americans to challenge clandestine government action against its own citizens.
COMMENTS
Brighter Orange Futures
"To wit, the essence of the Catch-22: the public statement by the President revealing the existence of the program is sufficiently trustworthy to establish the existence of the program for purposes of claiming the state secrets privilege, but, existing in some quantum legal state of being either A or B at the same time, is simultaneously not sufficiently trustworthy to establish standing for the plaintiffs - because, after all, he could be lying."
The Truth then is just always Testing for Lies/Tales Told rather than Thoughts Imagined?
The solution
The lesson that we should be taking from all of this is that we NEED to make sure that we get a law passed clearly stating that NO state secret is beyond judicial review.
The judges need to have full access to the secret info. If, after a request by a party in a lawsuit, the judge determines that the info is relevant to the case, the judge needs to have the power to introduce that info as evidence. Depending on the judge's decision, the secret info could remain classified and withheld, introduced as evidence under a confidentiality agreement, or declassified altogether.
The attorneys on both sides of the argument would get their chance to make their case. The judge will have access to the classified information and the legal arguments from both sides, and can then make an informed decision.
We have gotten by for so long under the current system only because no former President had the audacity to abuse the state secrets privilege to extent that the Bush administration has done. However, the potential for wide scale abuse of power has always been there.
It's time for a change.
@ Nano nano
I guess it is called "legal limbo". You know, like the one Maher Arar was told he was in, before they had him tortured in some Syrian hole for nearly a year.
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