Big Brother May Be Watching ~ But You Can’t Prove It

Micah Wright/Progaganda Remix Used with Permission

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.

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 (presumed to be the one Americans would not know about if not for the New York Times telling us about it, & the same, we have to presume, put into effect by Presidential fiat over the initial Department of Justice’s & even the FBI’s objections.

The judges instead chose (at the present 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, but the decision as a whole is also an exceedingly cramped one 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.

Read more about it here.

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 Here.

But the question is not entirely resolved. 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.