Orwellian Doublespeak
That's the phrase the executive director of the ACLU, Anthony Romero, used to describe the arguments put forth by the Bush administration today in a hearing before a federal judge in a case challenging the legality of the NSA's warrantless surveillance program. It's hard to think of a more apt description.
The administration's lawyers told the judge that "the evidence we need to demonstrate to you that [the NSA program] is lawful cannot be disclosed without that process itself causing grave harm to United States national security." Therefore, they contended, the case must be dismissed.
Alternatively, the government argued that the case should be dismissed because the plaintiffs have failed to establish that they personally were spied upon under the program (and therefore lack legal standing to sue). The administration claimed its hands were tied in this regard as well: "The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is. Indicating that someone is not subject to surveillance is itself revealing."
Got that? A suit alleging that the Bush administration is engaged in ongoing, widespread violations of our criminal laws must be dismissed because the alleged wrongdoer, the Bush administration, asserts that any adjudication of the issue would be counterproductive. In other words, under the administration's legal theory, the administration gets to determine unilaterally which of its actions will be subject to judicial review.
And while it assures us that the program is perfectly legal, the administration claims it cannot even divulge whether the named plaintiffs (Christopher Hitchens, Larry Diamond, etc.) were spied upon without harming national security. As Jack Balkin put it:
The President and the Attorney General have publicly admitted that the NSA program involves exactly the sort of warrantless surveillance which FISA forbids. This is not in dispute. They claim, however, that the president has the inherent authority under article II and the statutory authority under the AUMF to disregard FISA's prohibitions. Those are purely legal arguments, the resolution of which in no way depends on the as-of-yet undisclosed details of the program.
So even if we take the administration's word that disclosure of these remaining details would be harmful to national security, it's hard to see how that matters. The government should not be allowed to invoke the "state secrets" doctrine to dispose of a case that can be litigated without reference to those "state secrets."
The position taken by the administration in this case is, quite simply, antithetical to the rule of law. The administration is not only claiming the power to disregard duly enacted laws, but to permanently exempt such decisions from judicial scrutiny. If it is successful in this endeavor, the damage to our system of government will be extensive and long-lasting.
The administration's lawyers told the judge that "the evidence we need to demonstrate to you that [the NSA program] is lawful cannot be disclosed without that process itself causing grave harm to United States national security." Therefore, they contended, the case must be dismissed.
Alternatively, the government argued that the case should be dismissed because the plaintiffs have failed to establish that they personally were spied upon under the program (and therefore lack legal standing to sue). The administration claimed its hands were tied in this regard as well: "The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is. Indicating that someone is not subject to surveillance is itself revealing."
Got that? A suit alleging that the Bush administration is engaged in ongoing, widespread violations of our criminal laws must be dismissed because the alleged wrongdoer, the Bush administration, asserts that any adjudication of the issue would be counterproductive. In other words, under the administration's legal theory, the administration gets to determine unilaterally which of its actions will be subject to judicial review.
And while it assures us that the program is perfectly legal, the administration claims it cannot even divulge whether the named plaintiffs (Christopher Hitchens, Larry Diamond, etc.) were spied upon without harming national security. As Jack Balkin put it:
If the issue were not so grave, the government'sThis is all unquestionably true, particularly with respect to a case such as this one, where all the legally relevant facts are already a part of the public domain. There are undoubtedly many details about the program that have not yet been reported, but the administration's claim that these details are somehow crucial to the adjudication of the legality of the program is entirely disingenuous.
arguments would simply be farcical. If the federal
judiciary accepts the government's argument to
dismiss the case without requiring the government
to make somewhat finer grained distinctions about
what it can and cannot disclose, it might as well
close up shop. . . .
Letting the government march into court and shut
down inquiries into its possibly illegal actions on its
mere say-so creates the worst of bad incentives.
If the government can do so in this case, it can and
will do the same thing whenever the legality of its
actions is challenged in the future, and then we will
be well down the road to the destruction of our
constitutional system of checks and balances.
What is at stake in this case is the principle that the
Executive, like all other government servants, is
subject to the rule of law.
The President and the Attorney General have publicly admitted that the NSA program involves exactly the sort of warrantless surveillance which FISA forbids. This is not in dispute. They claim, however, that the president has the inherent authority under article II and the statutory authority under the AUMF to disregard FISA's prohibitions. Those are purely legal arguments, the resolution of which in no way depends on the as-of-yet undisclosed details of the program.
So even if we take the administration's word that disclosure of these remaining details would be harmful to national security, it's hard to see how that matters. The government should not be allowed to invoke the "state secrets" doctrine to dispose of a case that can be litigated without reference to those "state secrets."
The position taken by the administration in this case is, quite simply, antithetical to the rule of law. The administration is not only claiming the power to disregard duly enacted laws, but to permanently exempt such decisions from judicial scrutiny. If it is successful in this endeavor, the damage to our system of government will be extensive and long-lasting.
posted by A.L. at 10:41 PM
4 Comments:
Well it seems the government's case rests on two arguments that have been generally accepted previously in US law, (1) that the defendent has to prove harm and (2) that the government can claim national security.
Bush didn't invent these two excuses. The problem is with the law itself which has long accepted two excuses which are inherently so easy to abuse. The law itself only seems functional if you take the attitude of "just trust me" towards the executive.
And whereas if congess or the media or the public were dealing with the case instead of the judiciary a decision against Bush could be based on his corrupt and dishonest reputation, concluding he didn't deserve to be trusted but leaving open the possibility that other presidents might, with the judiciary any ruling against Bush would be a ruling against all presidents.
Under those circumstances won't a judge feel that if someone is going to stop Bush it ought to be a group that has the ability to make that sort of discrimination, and not the courts?
The alternative is to ask the judge to overturn centuries of precedent just to get at Bush. Of course that would likely be a good thing but, that's because I disdagree with the precedents, not Bush.
There's some wiggle room just because as you say the case against the government doesn't appear to turn on anything but publicly revealed information, but the government is claiming they have data that shows that isn't the case, and who are we to say it isn't?
In the past the judiciary have basically sat out on political questions like this, and you can see why. It's not their duty to settle political disputes. If the congress won't stop Bush no judge is going to. The best that can be hoped for would be them siding with congress if congress decided to quit supporting Bush. We're not even close to that.
This is not a 'political dispute.' This represents who we are as a nation of laws, and as a people. This is a constitutional dispute.
The Judiciary should be able to read between the lines of the Administration's sorry attempts to bar adjudication of its secrecy claims. If it does not, we truly are lost.
I hope Cheney's 'pendulum' swings back yet again, such that it firmly resides deep within his colon.
"...the administration claims it cannot even divulge whether the named plaintiffs ... were spied upon without harming national security." [emphasis added]
Maybe it's just the anger in me, but I'd really like a definition of National Security, and just whom does it cover. I suppose it would make more sense if they just said "Bush's backside" instead.
We ought to be clear about "national security" because there is no such thing as a “war on terror” or “war on terrorism.” It is a stupid statement, and I’ll explain why in a moment. I don’t mean that as a pejorative. And to repeat it, or give it any credence, is to help spread a lie, a deliberate attempt at propaganda, or a statement by a person who does not know what he or she is talking about. I find that the newspapers and television, as well as “blogs” on the internet, all use the phrase “war on terror” and it does everyone a disservice. Google alone states that there are 137,000,000 references to this phase.
When our President, George Bush, says those words, he is talking non-sense. So is anyone else using these words. The reason I am writing this article is to explain this phenomenon.
The words are inflammatory, and their ultimate effect often deliberately to cause people to suspend any rational judgment about the things the speaker wants to do because of this so-called “War on Terror.” When rational judgment is suspended, people will do anything no matter how ineffective it is because of the emotional mind-clouding power, and the fear it gives rise to, when such meaningless words are used.
It is also extremely sloppy journalism to repeat this phase, except as a direct quote, because it is meaningless. It is as meaningless as “war on laziness” or the “war on weather.” Journalists seem never to have heard of semantics, which looks at the meaning of words and how their use affects us.
Right now, we as a country are involved in a number of situations, one or two very separate wars, some diplomatic efforts, and a very diverse set of circumstances that may possibly threaten our way of life, and we, as a country, appear to be afraid of a number of diversified groups of people who reside in various countries. We are also, as a country, possibly threatened in a number of ways by a number of countries, as opposed to small scattered groups of people.
If we can define what these groups and countries are and distinguish how they differ from one another, it can help us to understand what we’re doing, why we’re doing it, and what the characteristics of all this mixed up “war on terror” might really mean. This, of course, immediately implies that there is no one single opponent against whom we can wage war, but instead presents a variety of different situations, some more dangerous than others, each of them requiring that we handle them, as best we can, in different ways if we want to reduce any threat they pose.
• The first group of people that we claim to be fighting with is a vaguely defined group, once led by a man named Bin Laden, that calls itself Al Qaeda. It appears to be based in Afghanistan, but may have spread to various other countries. It is a loosely-knit, guerrilla group that dislikes “the West”, vaguely defined as European and American countries. We don’t know nearly enough about it to be “at war” with this group because it is so diffuse, and it is all too easy to confuse it with other groups at times. It is not certain that its leaders are alive or have control over this group because it is so diffuse. Originally, it was most probably responsible for the event known as “9/11”. We, as a country under President Bush, claim to be fighting this group but appear to have lost interest in pursuing this group forcefully.
I say “claim to be fighting” because, for all of our efforts, we have never caught Bin Laden, and Al Qaeda appears to be stronger than ever before. We have troops in Afghanistan, but they appear to be there mainly poised to defend the central government, which has been threatened by a number of groups including the Taliban (the prior totalitarian government), war lords in various provinces, and a loose network of guerillas including the Al Qaeda group. The current Administration, led by President Bush, has apparently de-emphasized our military efforts in Afghanistan and his rhetoric, his use of the words “war on terror”, appear to be mainly directed at Iraq, not Afghanistan.
The number of deaths of U.S. troops killed in Afghanistan in this first military operation is 255 with 765 injured as of January 2006, as tracked by Wikipedia. I cite this figure in sharp contrast to the number of U.S. troops killed in the next military effort, still going on today, in Iraq which was 2,299 U.S. soldiers killed and 33,094 seriously injured as of March 2006 (cited at the site http://icasualties.org/oif/default.aspxhttp://icasualties.org/oif/default.aspx). The disparity between Afghanistan and Iraq, in terms of dead and casualties is very revealing about what is being emphasized.
• The second group that we were fighting was the Saddam Hussein regime in Iraq. It was a war declared by President Bush, with no real resistance from Congress. The enemy was a vague one – mainly the dictator, Saddam Hussein, who somehow had Weapons of Mass Destruction (WMD) and was linked vaguely to “terrorists”, the same ones named in Afghanistan as being Al Qaeda. None of these reasons has proven to be true. I repeat: None of the reasons given for this war have been proven to be true. As cited above, more than 2,000 U.S. soldiers have been killed in Iraq as a result of this war. Because of what the President and his Administration have been saying, and repeating as a mantra, according to many surveys, many people in the U.S. believe, irrationally, that this war is being fought as a “war on terror.” This is simply not an accurate or true statement.
It appears that Iraq has three major ethnic groups that have never gotten along. When Saddam was in charge of the country, the Sunni controlled everything with an iron hand. The Shiites, although in the majority, had no political power. The Kurds, the third group, also had no power. Once Saddam’s forces were overcome by the U.S. forces, the Shiites grabbed political power, the Kurds grabbed the northern part of the country, and the Sunni who had control and resented losing it have begun conducting an insurgency. The Shiites and the Sunni both have deep hatred of each other; it is obvious that the Sunni aren’t used to being out of power, and the Shiites resent all of the terrible things that were done to their people when the Sunni were in power. This is has led to brutal killings, with our troops in the middle, mainly siding with the Shiite majority. The country at this time may be in civil war.
Our troops really aren’t fighting “terror” or “terrorists” here. They are actually intervening in an internal conflict that has been going on for a long time back to when England and Winston Churchill was involved. I will add that there have been instances of non-Iraqi individuals crossing the border into Iraq from Syria and Iran to attack American military forces, and some of these individuals may be linked to Al Qaeda, but that is not the biggest part of the problem. In fact, because of our invasion of Iraq and our destruction of the status quo, by eliminating Saddam Hussein, it may be that we have opened a whole new breeding ground for, and encouraged, these individuals to learn how to operate successfully and conduct terrorist operations.
Iraq thus appears to be involved in a civil war of Sunnis versus Shiites, with Kurds protecting their interests, and some outsiders conducting guerilla terrorist operations aimed at fomenting unrest and driving the U.S. forces out. We cannot be involved in a “war on terror” here because there are at least four separate parties here, and it isn’t always clear who is doing what to hurt or kill whom.
• A third arena whom we are not fighting is North Korea, a dictatorship that is working to build an atomic bomb capability. This country is a military threat to South Korea because it possesses a huge standing army of more than a million soldiers. It is a country with a well-defined government, not a loosely organized group of individuals. We have not declared war on them, nor have they declared war on the U.S. But for some reason, at times, they have been included in this “war on terror.”
• A fourth arena that is also sometimes referred to under the mantra of “war on terror” is Iran. Iran is the largest country in the Middle East, with a government that is primarily run by its religious right. They may provide a place for Al Qaeda and other groups which dislike the U.S. for various reasons to develop and train members. We are not at war with Iran, and they are not at war with us. But, for some reason, they also have been lumped into this “war on terror”.
• There are other places in the world, such as South America and the Philippines, that have been also lumped into this “war on terror”, but, again, we have not declared war on them nor have they declared war on the U.S. Numerous groups, some of which hate the U.S. and some involved in insurgencies against their existing government, have the earmarks of “terrorists” in that they conduct underground operations, kill people indiscriminately, have loose organizations, may or may not be linked to other similar organizations.
• In general, it is also important to separate different types of terrorists (a very maligned word) into specific and different groups. For example, Basque separatists, in Spain, commit what we would call terrorist acts. So do the Tamil Tigers in northern Sri Lanka. They can both be called “terrorists.” Please note that, although these groups commit acts that seem to be terrorist acts, such as blowing up bombs in public places and killed innocent civilians, both of these groups are internal in their countries and act much as if they were engaged in a civil war against their existing government.
• So we are not at war with all of the groups I’ve mentioned. We couldn’t be. Many of them have no government for us to declare war on. It is sloppy use of communication to say that we are engaged in a “war on terror” when we really need to understand that there are many such groups around the world, each separate and different, each requiring different tactics, each posing a different type of threat (in some cases, no threat) to our country.
Please remember that next time you hear these words. If you understand what has been said here, you will be able to determine how absurd such a claim is (“war on terror”) and look at what the person saying these words is really trying to do. He or she may be trying to scare you so you don’t think clearly; he or she may be pushing an agenda to take rights away from you; he or she may be saying such words to get elected again; or to be considered “patriotic” or “strong” or “effective”. Always listen to the words and match them to the actions. The outcome may surprise you and open your eyes to what is actually going on.
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