Secret "Facts"

After years of successful assaults by the Executive Branch on the protections the Constitution provides citizens against the abuse of governmental power, January 31 and February 1, 2007, saw counter-attacks launched on two fronts to the continual siege of police-state tyranny.

First, in Cincinnati, in ACLU v. NSA, the Sixth Circuit heard the Deputy Solicitor General argue that a lawsuit challenging the NSA wiretap and email surveillance program should be thrown out because the plaintiffs – journalists, researchers, and lawyers – lacked standing because they could not prove the government intercepted their calls. That should seem a strange argument, since the NSA could simply acknowledge or deny whether the plaintiffs calls had been intercepted. Sounds simple. No interception, no standing. Interception, standing. But no.

Whether the plaintiffs’ calls have been intercepted is a fact known only to the government – the defendant – and to reveal this information would reveal “state secrets.” Courts take this nonsense seriously. Rather than following the Rules of Civil Procedure applicable to all other litigants, which permit Requests for Admissions, e.g. “Admit you wiretapped the plaintiff,” courts don’t make the government admit or deny basic jurisdictional facts and then dismiss cases that seek to enjoin executive crimes because the plaintiffs can’t prove standing. If the government asserts the “state secrets” privilege, why not just decree standing as a matter of law? On January 31, the ACLU continued to push the Constitution out of the trenches, and press forward against the unabashed cynicism of the administration’s drive to conquer the rule of law.

The next day saw the second front open in the Fourth Circuit in Richmond, where attorneys from the Brennan Center for Justice challenged the government’s 2001 arrest of Ali al-Marri, a legal resident, still held under the recent Military Detentions Act in Charlestown as an “enemy combatant,” with no charges filed, and no court in which to challenge his incarceration.

Again, our government asserted the Executive’s power to unilaterally and secretly determine the facts, decree that a person legally in the United States is an enemy combatant, and hold him without charges or judicial review. Is he an enemy combatant? The Executive says so, and Congress caved in and concurred that courts cannot test the truth of that decision because that would reveal “state secrets.”

When the President announces he is “the Decider,” this does not just mean he decides what course of action should be undertaken to further national policy. It also means he decides the facts. What he decides establishes the facts. The facts don’t dictate what he decides. No one can challenge these “factual” decisions in the Courts – the traditional Anglo-American forum for resolving factual disputes. The real evil of the government’s present position is that the one who controls the facts always controls the outcome. The one thing judicial independence presupposes, is that the facts will be impartially and openly determined, so that laws can be applied to reach a just outcome.

Not in this administration. Will federal courts join those of us who want to uphold individual liberty, or will they cave in to the hysteria that we are under attack by a colossus of jihadists, and join the administration in its imagined war on terror and real war against the Constitution?

Don’t be too optimistic that the Constitution will win.