Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As expected, the Bush administration is asking the courts to ignore possible violations of the constitution stemming from the NSA programs for tracking domestic and international calls without ever looking into the question.
The U.S. government has asked a pair of federal judges to dismiss legal challenges to the Bush administration's controversial domestic eavesdropping program, arguing any court action in the cases would jeopardize secrets in the ongoing "war on terror."...In asking federal judges in Detroit and New York to throw out challenges to the eavesdropping, the Bush administration invoked a doctrine known as the "state secrets privilege" it has used to head off other court action on its spy programs.
The claim was accompanied by an affidavit by Director of National Intelligence John Negroponte, who said disclosure of any information about the NSA's "Terrorist Surveillance Program" would "cause exceptionally grave damage to the national security of the United States."
The administration said the case before Judge Gerard Lynch in New York could not proceed without "revealing to the very adversaries we are trying to defeat what we know about them and how we are proceeding to stop them."
We'll call this the "you're not the boss of me" defense. But of course, that's incorrect - the courts are the boss of the executive branch when it comes to questions of constitutional law. The executive branch is not authorized to violate the constitution if they feel it's necessary to fight the war on terror. Martial law has not been declared, the courts are still operating, and they still have a job to do. A large part of that job is to adjudicate civil challenges to executive authority on constitutional grounds.
Think about this for a moment. They aren't making any argument here that the NSA programs being challenged are not unconstitutional. They aren't making a constitutional argument for the validity of those programs. They're saying, in essence, even if those programs are unconstitutional, the courts cannot even consider the question. They can't hear witnesses or evaluate arguments, they can't view the evidence, they can't do anything. The White House is saying that as long as they think it's important, no citizen can ever challenge their actions in court.
But remember that the first amendment guarantees the right to petition the government for the redress of grievances, and it grants to the courts the exclusive jurisdiction to decide all constitutional questions. This is nothing more than a power grab by an already ridiculously power hungry executive branch. If the courts grant a dismissal in these cases, they will be abdicating their authority and shredding an important first amendment guarantee.
Comments
Could they not hold these hearings in camera?
The problem for us as citizens is that we can't prove we have suffered a grievance, because the government refuses to say if we have. It would be the cruellest of ironies if strict adherence to one prong of due process, standing, should play a key part in the demise of the entire rule of law.
Posted by: Ginger Yellow
| May 30, 2006 12:03 PM