Letters to the Editor
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Another vote for separation of powers
Whatever the disappointments of the present case, and no matter how self-serving and hypocritical I find the right's condemnation of an activist judiciary, I'm with Glenn on this one. For all their public devotion to égalité, the French courts -- for example -- are hardly the equal of ours in protecting the rights of the accused.
God forbid we should be afflicted with a genuinely activist judiciary. As rotten a defender of the Bill of Rights and representative government as Congress has been lately, I'd hate to see it replaced by a kangaroo court system.
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Couplea things
Glenn sez:
(5) The plaintiffs here will, of course, appeal, though they have no automatic right to have their appeal heard. Either the full Sixth Circuit panel or the Supreme Court must agree to hear their appeal if there is to be a further decision in this case.
But an appeal may not be in the cards. Robert Sedler of Wayne State opines:
"I think this is the end of the matter," Sedler said. "I tell my students that no matter how good your claim is, if you don't have standing, you won't get it litigated."
He said the ACLU is facing long odds of persuading the full 6th Circuit to overturn the decision or the U.S. Supreme Court to hear the case given the White House's announcement that it now is obtaining warrants to eavesdrop on terrorism suspects.
http://www.freep.com/apps/pbcs.dll/article?AID=/20070707/NEWS06/707070364/1008
Of course that's not the end of it, but his statements may inject a dose of realism into the situation.
Yes, Congress needs to act, but will they do so rigorously, conscientiously, and thoroughly?
It's certainly possible, but if past behavior of this congress is any guide, they have little or no "stomach" for a direct confrontation with the White House over this or pretty much any other matter. Rather than follow the course that kovie and DCLaw1 (among others) lay out, which requires a goal in mind (let's call it The Truth and Conformity With Law), there are indications that both committees are more interested in something else... let's call it a "deal." The Congress as an institution seems incapable of a sustained challenge to either the executive's authority or its lawlessness. So even if the committees pursue the matter to the full (that's still a big "if"), there is no sign -- yet -- that this Congress is prepared to do anything about it.
My own sense is that there will be a "deal" of some kind that the executive will interpret and act upon as if it were exonerated of wrongdoing, and all surveillance "programs" (present or previous) will be deemed "lawful." There will be enough ambiguity in the deal for the committee chairs to claim a victory of their own, by "forcing" the White House to conform to the law, but nothing will really change at all, and no "secrets" will be revealed.
The public will remain as much in the dark about what's really going on as ever.
Sad. But that's what it looks like.
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bucky1 comes for the archbishop
Now, now bucky. Snark back or forever hold your peace. You aren't that hard to get, after all. You want a seat in shooter's cockleshell, I won't try to dissuade you, but I'll be damned if I'll play L.W.M. to your Grand Duchess of Fenwick.
L.W.M. believes it's his duty. Duty or not, I'm too easily bored.
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The Oregon Case: ''It's secret from anyone who has not seen it."
http://nytimes.com/2007/01/26/washington/26nsa.html
SECRECY AT ISSUE IN SUITS OPPOSING DOMESTIC SPYING
By ADAM LIPTAKPublished: January 26, 2007
[ . . . ] In August 2004, the Treasury Department's Office of Foreign Assets Control, which was investigating an Oregon charity, al-Haramain Islamic Foundation, inadvertently provided a copy of a classified document to a foundation lawyer, Lynne Bernabei.
That document indicated, according to court filings, that the government monitored communications between officers of the charity and two of its lawyers without a warrant in spring 2004.
''If I gave you this document today and you put it on the front page of The New York Times, it would not threaten national security,'' Mr. Eisenberg, a lawyer for the foundation, said. ''There is only one thing about it that's explosive, and that's the fact that our clients were wiretapped.''
[ . . . ]
The F.B.I. learned of the disclosure almost immediately in August 2004, Judge King said at a court hearing last year, but made no effort to retrieve copies of the document for about six weeks.
When it did, everyone it asked apparently returned all copies of the document. In a statement reported in The Post in March, for instance, Mr. Ottaway said he the F.B.I. had told him that the document had ''highly sensitive national security information.''
''I returned it after consulting with Washington Post editors and lawyers, and concluding that it was not relevant to what I was working on at the time,'' Mr. Ottaway said.
In a sworn statement in June, a lawyer who had the document, Asim Ghafoor, said the bureau took custody of his laptop computer ''in order that the document might be 'scrubbed' from it.''
The computer was returned weeks later.
In February 2006, the charity and the two lawyers who say they were wiretapped sued to stop the program, requesting financial damages. They attached a copy of the classified document, filing it under seal. They have not said how they came to have a copy.
Three weeks later, the lawyers for the foundation received a call from two Justice Department lawyers. The classified document ''had not been properly secured,'' the lawyers said, according to a letter from the plaintiffs' lawyers to the judge.
As Mr. Eisenberg recalled it, the government lawyers said, ''The F.B.I. is on its way to the courthouse to take possession of the document from the judge.''
But Judge King, at a hurriedly convened hearing, would not yield it, and asked, ''What if I say I will not deliver it to the F.B.I.?''
A Justice Department lawyer, Anthony J. Coppolino, gave a measured response, saying: ''Your Honor, we obviously don't want to have any kind of a confrontation with you. But it has to be secured in a proper fashion.''
The document was ultimately deposited in a ''secure compartmented information facility'' at the bureau office in Portland.
In the meantime, copies of the document appear to have been sent abroad, and the government concedes that it has made no efforts to contact people overseas who it suspects have them.
''It's probably gone many, many places,'' Judge King said of the document at the August hearing. ''Who is it secret from?''
A Justice Department lawyer, Andrew H. Tannenbaum, replied, ''It's secret from anyone who has not seen it.''
He added, ''The document must be completely removed from the case, and plaintiffs are not allowed to rely on it to prove their claims.''
- - N Y Times 01-26-2007