Criminality, Surveillance and the State Secrets Fraud | Harper's Magazine

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Criminality, Surveillance and the State Secrets Fraud


Congratulations to the editors of Newday, who have seen through the con artistry played by the Gonzales Justice Department, with remarkable success so far, on the American judiciary. In an editorial yesterday, here’s how they sum it up:

The administration has various rationales to bar the courthouse door. Last month a federal appeals court dismissed a suit by lawyers and journalists, saying they lacked standing to sue because they couldn’t show they’d been harmed. The reason? They couldn’t prove their calls had been monitored. Only the National Security Agency knows for sure, and it won’t say, insisting that coming clean would compromise national security.

In two other cases, argued Wednesday, the administration took a slightly different tack. It asserted a state secrets privilege, insisting that the suits must be dismissed because continuing them would reveal details of secret surveillance, and that would harm national security. In one of those suits, AT&T customers claim the government was improperly given access to their phone records. In the other, a Muslim charity says classified documents, mistakenly handed over by the government, prove their calls were monitored.

So here’s a summary of the artful dodge: If the government won’t confirm it monitored your calls, the case has to be dismissed. If you can prove you were targeted, the government can withhold evidence and the case has to be dismissed. If you already have the evidence you need, the government can bar its use and the case has to be dismissed. The administration shouldn’t be allowed to duck accountability for what could be ongoing violations of the rights of millions of Americans.

Right now the country needs a judiciary with a healthy respect for the Constitution and the limited powers theory of governance that our Founding Fathers left us and some healthy skepticism for the Bush Administration’s claims of secrecy surrounding its every maneuver—and particularly those which skirt the law. The administration tells us “trust us” and “the king can do no wrong.” Tom Paine, Thomas Jefferson, Ben Franklin, James Madison… and even Alexander Hamilton had a very forceful kind of response to that sort of argument. Let’s not forget it.

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