Friday, January 26, 2007

Spiders and Snakes 

From TomDispatch, where host Tom Engelhardt's introductions to the articles are usually as interesting and informative as the articles themselves, comes a new piece by Elizabeth de la Vega, author of United States v. George W. Bush. Ms. de la Vega's topic is the recent letter by Attorney General Alberto Gonzales informing the Senate Judiciary Committee that President Bush's illegal wiretapping program would henceforth be conducted under the auspices of the FISA court. In a public hearing shortly thereafter, Mr. Gonzales -- citing a legal precedent established, we believe, by the Red Queen of Wonderland -- further informed the committee that the constitutional guarantee of habeas corpus is not, despite the explicit language of the Constitution, constitutionally guaranteed:
On January 17, it appeared that, under the leadership of Democratic Senator Leahy, we might begin to get some answers from Alberto Gonzales at the Senate Judiciary Committee Hearing scheduled for the next day about the President's secret surveillance program: What is it? When did it begin? Who does it target? How are its targets chosen? Is it, as the law requires, particularized -- directed toward a certain target -- or simply a data-mining program that collects massive amounts of corporate and public online information and then cross-references it against U.S. intelligence and law-enforcement records? Who carries it out? What is the legal justification for surveillance outside the FISA statute?

It also seemed that we were proceeding in an orderly fashion towards a judicial review of the NSA spying program. In August 2006, in the case of ACLU et al. v. NSA, United States District Judge Anna Diggs Taylor of the Eastern District of Michigan ruled that the administration's National Security Agency warrantless surveillance program must be stopped, both because it violated FISA and because it constituted an unconstitutional violation of the First Amendment right to free speech and the Fourth Amendment right to be free from unreasonable searches and seizures. The United States appealed and, although the Sixth Circuit Court of Appeals stayed the execution of Judge Taylor's order pending that appeal, it scheduled the oral arguments on the case for January 31, 2007. How the Court would rule is impossible to predict, but one possible outcome, of course, would be a decision that the administration's domestic spying program is, as Judge Taylor had found, both unconstitutional and illegal under the U.S. Criminal Code; another would be a finding that the spying program was illegal based on one of those grounds . . . .

[B]y preemptively announcing that it was no longer going to conduct the program whose existence it had hidden completely for four years -- and sparred with Congress about for the next 18 months -- the administration clearly fervently hoped that it could wriggle away from congressional and judicial oversight. The ploy was, in other words, less a flip-flop than a slither. But the maneuver, clever as it appears at first blush, is hardly a surefire remedy for the administration's problems . . . .

Clearly, the government lawyers intend to argue that the case is moot: There's nothing left to decide because we're not doing it anymore.

There are, in fact, many legal counterarguments to this facile approach. For one thing, even if one assumes, for the sake of discussion, that the FISA problem has been addressed by the administration's new plan, the constitutional questions might still remain. There is another significant argument that weighs against the dismissal of the case for which the administration has been so cleverly maneuvering -- a doctrine holding that the court should still hear controversies that may have been resolved when the issue under consideration is "capable of repetition, yet evading review." This doctrine is particularly applicable to this situation, where neither the Court, nor Congress, nor the public have any way of knowing whether the administration has in fact abandoned its previous practices or whether it will ever decide to reinstate them. For such determinations, everyone has to rely on the word of Alberto Gonzales and the whims of the Department of Justice. The American Civil Liberties Union and the many diverse plaintiffs who have joined its lawsuit -- Greenpeace, writer Christopher Hitchens, and Larry Diamond of the Hoover Institution, to name a few -- will certainly make this powerful argument in the weeks to come.

The same rationale argues powerfully in favor of Congress forging ahead, regardless of Gonzales's bland assurances. Not only do we not have any guarantee that the administration is doing what it says its doing, or will continue to do what it says it plans to do, we still don't have the remotest idea what that plan is. As Senator Chuck Schumer (D-NY) pointed out during questioning of Gonzales, we don't know whether the warrants now being issued involve specific targets, as is required by FISA, or whether the Foreign Intelligence Surveillance Court has simply agreed to give blanket approval to warrants directed at a large group of targets, the very problem that Congress has theoretically been trying to address since early 2006: "If it's a very broad-brush approval -- and again, because it's secret, we have no way of knowing -- it doesn't do much good," Schumer commented.

We do, however, have a remarkably consistent track record on this matter, which should tell us something. We know that none of the administration's conduct with regard to Congress and the National Security Agency domestic spying program has been undertaken in good faith . . . .

Unbeknownst to the American people and Congress, during 2006, while everyone else -- naively thinking we lived in a democracy -– engaged in this ongoing faux debate, earnestly trying to divine what the administration was actually doing, discussing the pros and cons of the nearly laughable arguments they were making in support of whatever it was, and in good faith attempting to craft amendments to FISA that would accommodate the unique requirements of whatever it was that no one knew, the Bush administration was acting entirely on its own as if neither the public, nor Congress even existed.

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