Figure this one out: The U.S. government can’t be asked to justify its secret eavesdropping on American citizens, it says, because the reason for such spying is a secret itself.
That’s more or less what a Bush administration attorney told a federal judge in urging dismissal of a challenge to the National Security Agency’s domestic eavesdropping scheme. Given what’s already known about its skulking wiretapping program, hiding behind the “state secrets” shield may be the Bush administration’s best bet.
Best, but not good enough. The whole point of the American Civil Liberties Union’s case against NSA eavesdropping is that no government may operate by secret presidential decree. Filed in Detroit on behalf of journalists, scholars, lawyers and nonprofits who say the prospect of official eavesdropping has harmed them, the suit assails this warrantless surveillance as the legal outrage it is. For starters, says the ACLU, the program flouts the Fourth Amendment’s command that government may not spy on Americans without court permission. And as the suit notes, it also ignores a federal law barring U.S. officials from domestic spying even to obtain foreign intelligence _ unless they first secure a warrant from a special court.
The administration is only too willing to acknowledge such legal sidestepping _ but insists it’s no big deal. Why not? In wartime, the White House argues, the president is constitutionally entitled to do whatever he deems necessary to defend the country _ including shrugging off the law _ without submitting to any sort of oversight.
What will King George think of next? Today he’s invoking the theory _ and the endless, ubiquitous “war on terrorism” _ to justify warrantless spying on innocent Americans. And tomorrow? Why not an executive edict for house-to-house searches, or a suspension of the Fifth Amendment right against self-incrimination, or the tidy establishment of a virtuous and upright state religion?
Such notions may sound absurd, but are they? If it’s agreed that executive authority really does trump law and judicial review, there’s really nothing the president can’t do. That theory _ sauced by the claim that any public assessment of government conduct jeopardizes the keeping of “state secrets” _ is a recipe for dictatorship.
This very danger is reason to halt NSA’s warrantless spying straightaway, as the ACLU has asked. But U.S. District Judge Anna Diggs Taylor, who has charge of the case, has opted against an immediate order, and against a Justice Department petition for dismissal of the lawsuit. Another hearing is scheduled for July 12. The likelihood is great that the White House will claim then what it has maintained all along: The case must be dismissed because the president can spy however he likes, because revealing the details of such spying would compromise its essential secrecy _ and because the ACLU’s clients can’t prove they’ve been spying targets anyway.
Welcome to the world beyond the looking glass _ where the president is king, a war prevails eternally and the rule of law applies only to some. How long until the beheadings start?