Monday, June 12, 2006

Above the law

The "state secrets privilege" is the new best friend of proponents of the unitary executive. While one doctrine seizes power from Congress, the other prevents the courts from reviewing actions allegedly undertaken in the interest of national security.

The current case in point is the illegal warrantless wiretapping, as the DoJ ssks a judge to drop the suit on N.S.A. spying:
A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here today in the first major court argument on the program.

But, the lawyer went on, addressing Judge Anna Diggs Taylor of the Federal District Court, "the evidence we need to demonstrate to you that it lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege.…

"They argued essentially that the N.S.A. program was off-limits to judicial review," Mr. Romero said.
And Congress wasn't briefed on the program for the same reason. Witnesses can't testify before Congress because of national security.

This returns us again to our definition of what the country is. Conservatives seem to think that skin color and a common tongue are sufficient to define America. I happen to think that the principles of the Constitution are what are essential. And we can't defend the Constitution by evading its strictures. The three branches are supposed to impose checks and balances on one another. They are supposed to review each other's actions.

Let the court hold hearings in closed session, and seal the record. Let rulings be classified and redacted as necessary. But let justice be served.

If the program is legal, the courts will grant it a fair hearing and validate it. If it isn't legal, the courts will say so, as is their job. Either way, America wins, and that ought to be the President's interest.