Rust Never Sleeps
Following, from The Next Hurrah blog, is some heavy reading, but worth it I think.  I post it here to encourage my readers to go over to this blog when you have time, and also to just point out that the process of obliterating the democracy we think we live in continues, night and day.  Thus was the Grand Canyon created. 

–Fiddlin’ Bill (I took the Canyon photo)

All the doors are closing -- Part I.
by Kagro X
June 02, 2006

It has been my contention for a while now that the options for containing the dangerous expansion of executive power under the Nixon/Bush doctrine are diminishing, to the point where impeachment may be the last left standing.

And despite the validity of the various political or mechanical objections to impeachment, I'm left with the same question: what other alternative is there?

Love it or hate it, think it's possible or don't, outside of impeachment, the field of potential champions is looking mighty thin.

Do you remember our discussion, kicked off by DemFromCT back on December 2nd, of the shenanigans at the Department of Justice regarding the Texas redistricting case?

Justice Department lawyers concluded that the landmark Texas congressional redistricting plan spearheaded by Rep. Tom DeLay (R) violated the Voting Rights Act, according to a previously undisclosed memo obtained by The Washington Post. But senior officials overruled them and approved the plan.


The memo also found that Republican lawmakers and state officials who helped craft the proposal were aware it posed a high risk of being ruled discriminatory compared with other options.

But the Texas legislature proceeded with the new map anyway because it would maximize the number of Republican federal lawmakers in the state, the memo said. The redistricting was approved in 2003, and Texas Republicans gained five seats in the U.S. House in the 2004 elections, solidifying GOP control of Congress.

And do you remember how extraordinarily offensive I found it that the DoJ was exploiting traditional judicial deference to executive decision-making to make self-referential arguments in support of its own corrupt processes?
Now surely, when the inevitable questions are asked about how it came to pass that the Texas redistricting plan could be unanimously recommended for rejection by the panel assembled within the Justice Department's Civil Rights Division because it was on its face violative of the Voting Rights Act, but yet end up "approved" by (higher-ups at) DoJ, those higher-ups are going to have a story "justifying" the decision. "We simply disagreed with the staffers." That's all it takes. Why? Because the rules were written when it was still safe to assume that governmental actors did the boneheaded things they did out of a sincere desire to govern, as opposed to whatever it is the occupying junta's forces have in mind.


But what makes the Texas redistricting example so galling is that the DoJ's top officials went out of their way to knowingly play that deference as a trump card against those they knew would seek to enforce the Voting Rights Act. And let's keep in mind that they knew that job would fall to citizen plaintiffs, precisely because the VRA's appointed guardian -- the Department of Justice -- would at their direction not only refuse to do the job, but would bury the evidence that it needed doing at all!

Well, I've been thinking about those crazy DoJ fellows again, in light of their decision to assert the "state secrets" doctrine to quash public interest lawsuits seeking to challenge the legality of the NSA's domestic spying program.
A few minutes before midnight last Friday, the government filed a motion to dismiss the Center for Constitutional Rights' lawsuit against the National Security Agency's warrantless wiretapping program on the grounds that allowing the litigation to go forward would jeopardize "state secrets." (Their heavily redacted but still very long brief is available here.)
Shayana Kadidal, one of CCR's lead attorneys on the case, sums it up for us:
[In] its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would risk disclosure of secrets that would threaten grave damage to national security, and asking the court to dismiss the suit based solely on those grounds. Previous invocations of the privilege by the government have most commonly been at the discovery stage, asking the courts to deny private litigants access to documents or witnesses, but more recently the government has moved to dismiss a spate of cases — most notably torture-rendition cases on behalf of Maher Arar and Khaled El-Masri — at the pleading stage. In these cases the government has argued that to even answer the complaint by confirming or denying its allegations would risk the disclosure of secrets that could cause “exceptionally grave damage to the national security.” (This is a particularly perplexing assertion in our case, where administration officials went on an extensive public speaking campaign in defense of the legality of the NSA program; indeed, we filed a motion for summary judgment two months ago based on these public admissions.)

Typically, when faced with sensitive evidence, a court might close the courtroom, place briefs under seal, and make the other side’s attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. In the government’s view, the state secrets privilege says that isn’t good enough for some secrets. For the most sensitive secrets, even the judge cannot be trusted to hear the secret matter. Whether the risk of disclosure is in fact real if litigation is allowed to continue, and whether grave damage to national security will result in the event of disclosure, are purely executive determinations which the court is compelled to accept uncritically. The judge may not call the executive official who executes the affidavit setting forth these determinations into court for further scrutiny of his claims, even in camera. And all this is the case “even where allegations of unlawful or unconstitutional [executive] actions are at issue.” Or so the government’s argument goes.

So there it is again: "purely executive determinations which the court is compelled to accept uncritically." Just like redistricting. And also just like redistricting, it's a parlor trick that's absolutely determinitive of the substantive outcome of the case.

How so? Ask the government, which states in its brief (at page 4):

Once the privilege is properly invoked, as it has been here ... the privilege is absolute and the information at issue must be excluded from disclosure and use in the case. [Citations omitted.] The Court must then decide whether the case can proceed without the excluded evidence. If either Plaintiffs cannot support their claims, or Defendants cannot defend against them in the absence of the privileged information, the case must be dismissed.
What a neat trick! "Your Honor must dismiss the suit on the grounds that we refuse to produce evidence in our own defense." And if that isn't enough (at 16):
[T]he states [sic] secrets assertion by the United States precludes adjudication of Plaintiffs' standing as a factual matter. That is, Plaintiffs will not have access to the evidence they would need to establish their standing....
Indeed. In fact, here's a fun reference point for those of you unconvinced of the long-lasting effects of not fighting the insane Nixon/Bush doctrine tooth and nail at every opportunity (at 26):
[I]n Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983), a group of individuals filed suit after learning during the course of the "Pentagon Papers" criminal proceedings that one or more of them had been subject to warrantless electronic surveillance. Although two such wiretaps were admitted, the Attorney General asserted the state secrets privilege, refusing to disclose to the plaintiffs whether any other such surveillance occurred. See id. at 53-54. As a result of the privilege assertion, the court upheld the district court's dismissal of the claims brought by the plaintiffs the Government had not admitted overhearing, because those plaintiffs could not prove actual injury. See id. at 65.
But what if the plaintiffs, willing to really stick their necks out in order to make a legal point, admitted they were communicating with al Qaeda, just so that they could establish standing? Well...
any reasonable person who communicates with individuals associated with al Qaeda or affiliated terrorist groups must assume that his or her communications with such individuals could be subject to surveillance by other means or entities--including an order of the Foreign Intelligence Surveillance Court, a Title III law enforcement warrant, or by other governments or law enforcement authorities.
How true! And thus, another irony: the defense of the "Terrorist Surveillance Program" by virtue of its redundancy with legal means of surveillance. And here you thought the era of big government was over!

But for our purposes today, the real meat of the DoJ brief is found, beginning on page 27, under the heading, "Whether Alleged Surveillance Activities Are Properly Authorized by Law Cannot Be Resolved Without State Secrets."

Uh-oh. That doesn't sound good. Because when you put that together with how the DoJ has already argued such state secrets ought to be regarded by the courts, you're simply left with this: "Whether Alleged Surveillance Activities Are Properly Authorized by Law Cannot Be Resolved ."

So if that's right, it pretty much closes off the possibility of any answers from the holders of Article III powers.  Next, we'll ask some rhetorical questions about the possibility of restoring Constitutional integrity under Article I.

June 02, 2006 at 18:39 in Bush Administration, Contributor--Kagro X, Law, Public Policy Process, Republicans

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