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More important evidence of judicial backbone this afternoon. In response to a motion by the ACLU challenging the Bush Administration’s insistence on keeping all dealings surrounding the FISA Court in secret, including its orders, the Court has entered an order directing the Bush Administration to explain its abnormal demands for secrecy.
Only 48 hours ago, a panel of judges of the Ninth Circuit subjected a Justice Department lawyer arguing similarly absurd secrecy claims to questioning which was tantamount to public ridicule.
The FISA Court’s order seems to rest on an equally skeptical attitude towards the government’s melodramatic and very improbable secrecy claims.
In an unprecedented order, the Foreign Intelligence Surveillance Court (FISC) has required the U.S. government to respond to a request it received last week by the American Civil Liberties Union for orders and legal papers discussing the scope of the government’s authority to engage in the secret wiretapping of Americans. According to the FISC’s order, the ACLU’s request “warrants further briefing,” and the government must respond to it by August 31. The court has said that any reply by the ACLU must be filed by September 14.
“Disclosure of these court orders and legal papers is essential to the ongoing debate about government surveillance,” said Anthony D. Romero, Executive Director of the ACLU. “We desperately need greater transparency and public scrutiny. We’re extremely encouraged by today’s development because it means that, at long last, the government will be required to defend its contention that the orders should not be released.”
When national security is at stake, the government may have completely legitimate secrecy concerns. However, the Gonzales Justice Department’s track record shows that this is very rarely the case. When matters finally bubble to the surface, as we witnessed recently with the drive for FISA amendments, the Bush Administration’s secrecy demands usually turn out to have been driven by a blatantly political calculus—the desire to avoid being embarrassed in public debate, or even to avoid exposing its unlawful conduct, which the court has flagged and attempted to stop.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Acres of hemp grown by “patriotic‚” U.S. farmers in 1942 at the behest of the U.S. government:
A study suggested that the health effects of exposure to nuclear radiation at Chernobyl were no worse than ill health resulting from smoking and normal urban air pollution.
Greenpeace apologized after activists accidentally defaced the site of Peru’s 2,000-year-old Nazca Lines when they unfurled cloth letters reading “time for change” near the ancient sand drawings. “We fully understand,” the group wrote in a statement, “that this looks bad.”
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“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”