Friday, February 02, 2007

Pushing back on civil liberties

We have some signs that the courts aren't going to let the Bush administration skate on a couple of important civil liberty cases.

When the administration recently agreed to submit its NSA eavesdropping program to court review, part of its motivation for doing so had to be the fact that a district court judge had ruled the program unconstitutional. The administration was appealing that decision, but by canceling the program and replacing it with a new one I'm sure they hoped to make that case moot and avoid the risk of an adverse ruling.

They might have a surprise coming. At the urging of the plaintiffs, the appeals court is considering continuing the case anyway.

Three federal judges hearing the first appellate argument about the legality of a National Security Agency domestic surveillance program on Wednesday indicated that they were not that convinced the issue was moot now that the Bush administration had agreed to submit the program to a secret court.

In a series of sharply worded questions to an administration lawyer defending the program, the judges noted that the administration did not promise to continue working with the secret court in the future.

“You could opt out at any time, couldn’t you?” asked Judge Ronald L. Gilman of the United States Court of Appeals for the Sixth Circuit.

Deputy Solicitor General Gregory G. Garre acknowledged the possibility.

The government makes two procedural arguments, and neither should be decided in the government's favor.

The first is that the program's revamping renders the case moot. But that's little more than a dodge. When it comes to something as intrusive as warrantless surveillance, we as citizens deserve a clear understanding of what is legal and what is not. The court should make a definitive ruling on what the Fourth Amendment allows in this regard, and not simply avoid the question.

The second is that the plaintiffs do not have standing, because they cannot prove they have been harmed by the program. This, too, is a bit of sophistry, because the program is secret and thus it is almost impossible to show direct harm. Allowing that argument to stand effectively means the program can never be subjected to legal scrutiny. "Standing" is a legitimate legal concept, designed to keep people from interfering in cases that are none of their concern. But in this case one ought to be able to sue on the grounds that the program essentially affects all Americans, even if only theoretically. Our civil liberties deserve at least that much respect.

I await their preliminary ruling with interest and trepidation.

Separately, an appeals court in Virginia heard a challenge to Bush's "enemy combatant" policy.

In a series of probing and sometimes testy exchanges with a government lawyer, two of three judges on a federal appeals court panel here indicated Thursday that they might not be prepared to accept the Bush administration’s claim that it has the unilateral power to detain people it calls enemy combatants...

“What would prevent you from plucking up anyone and saying, 'You are an enemy combatant?'" Judge Roger L. Gregory of the United States Court of Appeals for the Fourth Circuit asked the administration’s lawyer, David B. Salmons.

The government's response shows clearly why such a designation is Constitutional offensive:

Mr. Salmons said the executive branch was entitled to make that judgment in wartime without interference from the courts. “A citizen, no less than an alien, can be an enemy combatant,” he added.

Got that? Because we're at war, the administration has the sole authority to decide who to jail. And any person so jailed cannot contest their incarceration, and can be held indefinitely without trial. In other words, the Fifth Amendment gets suspended during wartime.

Besides being grossly violative on its face, the argument again points up the problem with trying to view the fight against terror through a "wartime" lens. The clothes simply don't fit. As one of the judges on the panel said:

“Nations have wars against each other,” Judge Motz said. “People have quarrels or fights. Individuals can be terrorists. Individuals don’t make war.”


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