Big Brother Is Watching ~ But We Won't Let You Prove It

Ill: Micah Wright/Propaganda Remix

Used with Permission



http://homepage.mac.com/leperous/PhotoAlbum1.html

Tangled in the Sticky Wicket of the Bushco State, Court Says "Do Not Pass Go"


Last week' s most distressing ~ or more precisely, frightening ~ news was that two Republican appointed judges of the Sixth Circuit reached what strikes me as a Kafka-esque ruling in denying a group of Plaintiffs who were very likely spied upon without warrants their day in court ~ based on an exceedingly narrowly drawn, & indeed, twisted, technicality, with the result that you, my friend, however much you value your privacy, & regardless whether spying on you is legal or not, cannot contest it. (WaPo article: http://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070600779.html )

A very bizarre result ~ a jaw-dropper, in fact. Last I checked, we are all still living in the USA as opposed to some flimsy 3rd-world dictatorship, where, as Karl Rove warned us, the guys in charge are colonels in mirrored sunglasses.

Unlike the lower court decision by Anna Diggs Taylor which found that the administration had admitted to the program & the fact that it had been carried out with no oversight, the Sixth Circuit, hearing the appeal, did not address the legality of the spying program itself (the one Americans would not know about if not for the New York Times telling us about it, & the same put into effect by Presidential fiat over the Department of Justice's & even the FBI's initial objections.)

The prevailing judges instead chose (at current DOJ's urgings) to focus on whether the Plaintiffs, who were, among others, lawyers representing Muslim detainees whose attorney-client privileged communications would have been seriously breached if the government was listening in without a warrant. They were turned away on the basis that they lacked standing to sue.

"Standing" is lawyer-speak & a basic legal concept, requiring that some harm has actually been done: in other words, you can't file a claim before a court unless & until some actual, legally-recognized harm has been done to you. I have no quarrel with that tenet (on its face, that is ~ the Supreme Court has raised the bar to keep people out in recent years), but it's also an exceedingly cramped decision in that the judges, 2 to 1, also accepted uncritically the DOJ's argument that any evidence could be forbidden to the Plaintiffs based on the government's say-so that any spying programs are "state secrets."

The LA Times reported that Judge "Batchelder wrote: 'The plaintiffs do not — and because of the state secrets doctrine cannot — produce any evidence that any of their communications have ever been intercepted by the NSA, under the TSP, without warrants.'

"Rather, she said, the plaintiffs had asserted 'a mere belief' that their overseas contacts were the types of people being targeted by the NSA.

"The ruling presents 'a Catch-22,' said Larry Diamond, a senior fellow at the Hoover Institution at Stanford University and one of the plaintiffs.
http://www.latimes.com/news/nationworld/nation/la-na-spying7jul07,1,77388.story?page=1&coll=la-headlines-nation

When the lower court handed down its decision, then & only then did Bush acknowledge the previously existing FISA court's jurisdiction over the matter, so as to be able to argue in this appeal that the illegality of the spying program is now a moot issue ~ however, continuing to reserve the right to resurrect it unilaterally at any time. Moot it's not, in other words.

The state secrets argument is based on a 1953 Supreme Court decision in United States v. Reynolds that, according to the Constitution Project, has resulted in overbroad readings of the doctrine, &, ironically enough, in a case where the widows of Air Force personnel sued the government for the wrongful deaths of their husbands ~ they were forced to drop the case. But it turned out (much later) that there were no legitimate "state secrets" involved ~ the government was just trying to conceal its own wrongdoing. (Proving, yet again, that no irony is too heavy to be lost on, or ignored by, Bushco & its friends in the judiciary.)
Read more about it: http://www.constitutionproject.org/

The question is not entirely resolved, however. Several other suits, including one to be heard in the Ninth Circuit, sitting in California, will be addressing the similar questions, & are not bound by the Sixth Circuit's decision.

On another front, & perhaps a more fruitful one, "Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) called the court decision 'a disappointing one that was not made on the merits of the case, yet closes the courthouse door to resolving it.' [A] panel has been conducting an investigation into the warrantless wiretapping program. Last month, it issued subpoenas to the administration, seeking documents related to the program's "authorization and legal justification."

The Bush Administration has already said it won't comply with the subpoenas, & a full-blown Constitutional crisis may well be in the making. Since Bushco's arrogance seems to know no bounds, it does appear that nothing short of drastic remedies will loosen its death grip on American democracy. At this point, it seems to be our last, best hope.

The paralells to the Nixon presidency are all too clear to be missed. John Dean wrote late last year on the topic, after the NYT broke the story of the illegal spying ~ Bush as the present-day Nixon, an article worth reviewing again now. http://writ.news.findlaw.com/dean/20051230.html

Your Demon would add that the comparison is not quite apt ~ Bush is far worse, as it seems he does it in an effort to provoke exact sort of crisis that Nixon resigned over rather than face impeachment. I predict Bush will not resign ~ he'll stay the course with every misguided & heretofore illegal policy he has so far pursued, & go down, if at all, as the American poster boy for the monarchial "unitary executive" legal theory, which some neocons now on the Supreme Court helped formulate. Long story short ~ impeachment is the strongest course of action.

Senate Subpoenas White House, Cheney & Calls 'Berto Back

Ill: Internet Weekly

About Damned Time!

Today's great news (title bar): the Senate subpoenas the White House & The Dick in an effort to follow up on a revelation by James Comey, formerly of John Ashcroft's DOJ, that someone there sent then-WH counsel Alberto Gonzales & Andy Card on ghouls' errands to badger Ashcroft as he lay in the intensive care unit ~ in an attempt to get him to sign off on a spying program that Justice didn't think legal (after it had already been in effect).

(The Senate also wants to hear from 'Berto again ~ fat lot of good that will do them, probably.)

"Gonzales, in Spokane, Wash., on Wednesday to discuss gang issues with local officials, said he had not seen the subpoena documents and could not comment on them directly. 'There are competing institutional interests,' Gonzales said."

"The Bush administration secretly launched the eavesdropping program, run by the National Security Agency, in 2001 to monitor international phone calls and e-mails to or from the United States involving people the government suspected of having terrorist links. The program, which the administration said did not require investigators to seek warrants before conducting surveillance, was revealed in December 2005.

"After the program was challenged in court, Bush put it under the supervision of the Foreign Intelligence Surveillance Court, established in 1978. The president still claims the power to order warrantless spying.

[...]
"Debate continues over whether the program violates people's civil liberties. The administration has gone to great lengths to keep it running."

According to the New York Times, "Senator Patrick Leahy, the Vermont Democrat who is chairman of the committee, said the subpoenas seek documents that could shed light on the legal basis used by the administration to justify the wiretapping program. In addition, the panel is seeking materials on the way the program operated, including the relationship between the agency and several unidentified telecommunications companies that aided the eavesdropping program.

"The panel’s action was the most aggressive so far by lawmakers investigating the wiretapping program since the Democrats gained control of Congress in January [following Comey's testimony], which seemed to reinvigorate congressional interest in scrutinizing the warrantless wiretapping program, since he detailed sharp disagreements within the administration over whether the program was illegal.

"Before his testimony, the White House had been able to fend off aggressive oversight of the program because many Democrats were afraid to be cast as soft on terrorism.

"But Mr. Comey’s account of the confrontation between senior White House aides and Justice Department officials has given Democrats an opening to argue that their focus is on whether President Bush violated the law and ignored the advice of the Justice Department.

"The Senate panel has been asking the administration for documents related to the wiretapping program since Mr. Comey testified. But the White House did not respond to the committee’s oral or written requests. As a result, the panel voted last Thursday to authorize Mr. Leahy to issue subpoenas, and he issued them today."

http://www.nytimes.com/2007/06/27/washington/27cnd-nsa.html?adxnnl=1&adxnnlx=1182988874-CBoVHRYAHZrDYgx+ga1tug

Undoubtedly, the Senate Judiciary Committee has also been emboldened by U.S. Judge Royce C. Lamberth, head of the FISA court that oversees approval of warrants, the same court Bushco claims is too clumsy to be of any use during times of extreme national emergencies. Lamberth recently spoke publically & is outspoken in defending the court (which was set up in the aftermath of Watergate to prevent the sorts of abuses that occurred during the Nixon administration).

In an interview today with the Washington Post, "Lamberth's defense of the court's speed and efficiency came after senior Bush administration officials said its procedures were too cumbersome to meet counterterrorism needs in the post-9/11 world, and created a system of warrantless wiretapping by the National Security Agency that did not include judicial review.

"Taking direct aim at the administration's assertion, Lamberth noted that members of the court had approved almost 99 percent of the FISA applications presented. He added that he could not see a better way of conducting such surveillance.

"'What the president did with the NSA,' Lamberth said, was 'a proposal for a worse way.'

Lamberth went on to recall "several other counterterrorism cases in which he played a key role, noting that he could speak because the court's involvement had been declassified during trials," including the day of 911, when he was trapped in his car near the Pentagon. Despite being "engulfed in smoke, and...couldn't move, he called for help, and the FBI came "to get me in a position where I could get Justice to start approving FISA [warrants]. . . . By the time the FBI got to me in my car, I had already approved five."

Lamberth also detailed why the FISA process has much more accountability & oversight built in as compared with Bush's warrantless spying by Presidential fiat. Although the agencies involved have recently shown themselves not immune to highjinks & manipulation (especially Justice), the fact that a supervising investigating agent has to appear under oath to testify & can be questioned by the presiding judge is a damned sight better deal than an FBI which just issues "national security letters" with no oversight or follow-up at all ~ and as we saw recently, did away completely with the bothersome accountability controls because it just couldn't keep up with its paperwork. (See post here: http://moroncowboy.blogspot.com/2007/03/domestic-spying-fbi-pledges-to-clean-up.html

"In a FISA court hearing, according to Lamberth, a Justice Department lawyer presents the application, usually 40 or 50 pages, and the investigative agent is put under oath. 'I have the agent before me,' Lamberth said. 'I can question the agent. I can get into the nitty-gritty of exactly what we're doing and why.'

"During the Clinton administration, Lamberth said, members of the court learned that false affidavits had been filed. 'Our judges thought of a real easy solution. We'll just bar that agent from ever appearing in our courtroom. So it didn't really matter if it was negligent or it was intentional. . . . And he's one of their top counterintelligence agents.'

"Louis J. Freeh, then director of the FBI, 'came over and begged me to rescind the order, everything under the sun that could be done about that order,' Lamberth said. 'We never rescinded it. We enforced it. And we sent a message to the FBI: You've got to tell the truth."

http://www.washingtonpost.com/wp-dyn/content/article/2007/06/25/AR2007062501901.html

But what has Dick Cheney had to do with it? Some say "everything." According to the intensive 4-part article about the VP appearing this week in the Washington Post,

"In expanding presidential power, Cheney's foremost agent was David S. Addington, his formidable general counsel and legal adviser of many years. On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you.

"Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?

"Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command center. White House counsel Alberto R. Gonzales joined later.

"Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.

"Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel, became the theorist of an insurrection against legal limits on the commander in chief. Addington, backed by Flanigan, found levers of government policy and wrote the words that moved them.

"'Addington, Flanigan and Gonzales were really a triumvirate,' recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, 'was a supporting player.'

"Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington -- a man of imposing demeanor, intellect and experience -- dominated the group.

Gonzales 'was not a law-of-war expert and didn't have very developed views,' Yoo recalled, echoing blunter observations by the Texan's White House colleagues.
Cheney 'Has the Portfolio'

"Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. [Read the authorization document] Yoo said they used the broadest possible language because 'this war was so different, you can't predict what might come up.'

"In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as 'incident to' the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.

"It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had 'open contempt,' according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice.

"Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good 'public relations' or bureaucratic consensus. Addington, who seldom speaks to reporters, declined to be interviewed."

http://blog.washingtonpost.com/cheney/chapters/chapter_1/

With respect to the Senate subpoenas, seems likely that Bushco will try to assert executive privilege &/or continue to ignore them. It is for certain that the long-predicted Constitutional crisis may at last be coming to a head. All Bushco has on its side right now is time, however. If the matter is to be settled by the judiciary, & the Supreme Court especially, the chances of Bushco prevailing is up for grabs. Certainly Alito, Clarence, Scalia & probably Roberts will endorse the lunatic "unitary executive" theory ~ & upon their heads be the fall of American democracy in favor of despotism & government by cabalists. The rest of the (sane) justices will keep that in mind, it is to be hoped.