Let's Talk Merits

The Washington Post reported Wednesday that the government has agreed to turn over classified documents about its domestic eavesdropping program to Congress, attempting to paint a picture of cooperative playground behavior: ”It’s important for us that they understand what we’re doing,” Attorney General Gonzales said, ”All they have to do is ask.” Oh, really. So the two week standoff between the congressional Judiciary and Intelligence committees and the Bush administration was not due to the government’s blatant refusal to provide details on the legality of its unwarranted NSA program? Right. Threats of subpoena action by Congress and a higher court finding the program unconstitutional probably had nothing to do with it in the least.

This disclosure came the same day I sat in the Sixth Circuit Court of Appeals in chilly Cincinnati, where a three-judge panel (Judges Alice Batchelder, Ronald Gilman and Julia Gibbons) heard oral arguments in the ACLU v. NSA case, after a district court judge found the president’s secret program unconstitutional.

I had the unique and fortunate opportunity to sit next to Nazih Hassan, a plaintiff in this case and native of Lebanon, whose perspective and experience demonstrate this administration’s gross abuse of power.

The appeal by the Justice Department, argued by Mr. Greg Garre was complex and nuanced by case law; however, the argument was clearly pronged: 1) The “jurisdictional defects” of the Plaintiff’s lack of standing – mainly, they could not prove that they were the subject of surveillance and suffered as a result, and that the plaintiff’s entire case is now moot given the attorney general’s letter stating that the Terrorist Surveillance Program (TSP) is now subject to FISA. The second prong is that if the court didn’t agree on standing or that the case is moot, then it must agree that the state secrets privilege applies and reverse the district court’s ruling. And here, my friends, is a classic Catch-22: according to the government, any ability that the plaintiffs may have in this case, or any case for that matter to prove they have been and/or are under surveillance is actually protected by the state secrets privilege and basically never existed. And it was also clear that to muddy up this circular argument with the merits of the case, you know, the (un)constitutionality of the president’s program, was simply unnecessary. The government did, however, remind the panel of the constitutionality of the president’s “inherent” powers during wartime, i.e. the state secrets privilege will always be an obstacle to resolving FISA and/or the Separation of Powers questions. Or a tool of circumvention.

The statement on behalf of the Plaintiff’s, argued by Ann Beeson was precise: The court must decide whether the President of the United States is obligated by statutory law to abide by FISA. If not, the impact, Beeson warned, is that the President is left to his own accord to decide which laws to follow and which to ignore, say, for nearly five years. And let me remind you, as Beeson reminded the panel: FISA provides the executive branch with the power to conduct warrantless surveillance 15 days after the declaration of war and up to 72 hours before FISA approval. President Bush continued to give the nod to his secret program of warrantless, indefinite and unlimited domestic surveillance of American citizens, violating the very FISA court he now concedes has a role in such activity.

The governments’ argument that the case is moot is empty: The voluntary cessation of an illegal action does not dissolve its illegality. Besides, as Judges Gibbons and Gilman stated: The government voluntarily put its’ secret program under the FISA “umbrella” and given its consistent position that the president’s program is legal (if you can believe that), it can “opt out” of any obligation to FISA (which is likely).

And to the standing argument, Judge Gilman pointedly asked the government: “If the Plaintiff’s here don’t have standing, who would?” Right on, your honor, especially since we seem to be living in the pages of Joseph Heller’s book. But to answer the question, the government relied on Laird, which basically goes back to state secrets and the plaintiffs illustrated for the court the concrete harm they indeed have suffered, which the government has never argued against.

So, in the name of cooperative playground behavior, the Bush administration is quite rickety on the balance beam – that “delicate balance,” as coined by the Church Committee, between the fundamental liberties of the American people and the government’s effort of security.

And lastly, a “reality check”: There are three branches of government and I quote Beeson’s perfect summation: “Now it’s for the Court to check the Executive branch. Congress did its part.” In the meantime, someone should give the president a wallet-size copy of the Bill of Rights.