In the War On Terrorâ„¢ the White House needs to spy on every one of us in order to keep us free:
The Bush administration has asked federal judges in New York and Michigan to dismiss two lawsuits filed over the National Security Agency’s domestic eavesdropping program, saying litigating them would jeopardize state secrets.
In papers filed late Friday, Justice Department lawyers said it would be impossible to defend the program’s legality without disclosing classified information that could aid terrorists.
John D. Negroponte, the director of national intelligence, invoked the state secrets privilege, writing that disclosure would cause “exceptionally grave damage” to national security. The administration laid out some of its supporting arguments in classified memos, filed under seal.
The motion, widely anticipated, involves two cases challenging an N.S.A. program that allows investigators to eavesdrop on Americans who communicate by phone or e-mail with people outside the country suspected of terrorist ties.
It is probably safe to say that the invocation of the state secrets privilege is what is known in legal circles as a “load of crap” when it is fairly obvious that they are trying to avoid any type of judicial oversight that might harsh their penchant for the extra-legal. As Glenn Greenwald once wrote:
The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures — from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants — but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.
The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in the cases of Yaser Hamdi and Jose Padilla — two American citizens whom the administration abducted (in Padilla’s case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming — based solely on George Bush’s secret decree — that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.
But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush’s decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla’s case, the administration — one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla’s 3 1/2 year lawless incarceration — suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla’s claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.
In essence what the the Justice Department is doing under Alberto Gonzales is gaming the legal system in order to achieve whatever George W. Bush or Dick Cheney want in much the same way that defense attorneys file endless appeals in order to forestall the inevitable. Keeping anything and everything out of the hands of the legal system lets Gonzalez act as judge, jury, appeals court, and Supreme Court.
It’s no wonder that when there were two openings on the Supreme Court, Gonzalez was passed over. Why give up all that power when consensus may be arrived at much more easily when there is only one vote instead of nine.