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.
