State Secrets

ACLU Responds to Federal Court Ruling in "State Secrets" Lawsuit About Warrantless Wiretapping (11/16/2007)

SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit ruled today that a charity that sued President Bush for engaging in unconstitutional surveillance can pursue its case in court. The Bush administration had asked the appellate court to dismiss the suit on the grounds that the very subject matter of the litigation – the National Security Agency's warrantless wiretapping program – was a state secret. The Ninth Circuit rejected this argument, noting that the government had publicly acknowledged the surveillance program and that senior officials had discussed the program in press conferences and statements....

Jameel Jaffer, Director of the American Civil Liberties Union’s National Security Project, had this to say about the matter:
"As the court properly recognized, the government should not be permitted to shut down litigation simply by asserting that a case implicates state secrets. In the al-Haramain case and many others, it's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."

Here again we're witnessing the ill effects of the "post-9/11 syndrome" that has so corrupted the Cheney/Bush regime in Washington, D.C. The need for some secrecy in chasing down active terrorists is legitimate. Yet for these crooks, the collapse of the Twin Towers in Gotham signalled the collapse of constitutional safeguards for all Americans' civil liberties. They've trampled on the Fourth Amendment so hard, you could be excused for thinking it was effectively revoked!

For six years the Rethugs have pretty much been given carte blanche by the Congress and the Courts to do as they please. This 9th Circuit decision reassures us that at least some of our nation's judiciary hasn't been corrupted into rubber-stamping this budding militarist dictatorship.

For now, I truly believe that we cannot expect our representatives, Republican or Democratic, in D.C., to resist the power of huge telecom corporations and the military-industrial comnbine. We citizens need to squawk loudly in defense of our Bill of Rights! Write not only to Washington, but also to the editor of your local paper... eternal vigilance surely is the price of liberty in our times.

King George to U.S. Citizens: "Back off, you filthy peasants!"

So here's the firm, yet polite and restrained request:

June 29, 2007

Fred Fielding, Esq., Counsel to the President

The White House, 1600 Pennsylvania Avenue

N.W.Washington, D.C. 20500

Dear Mr. Fielding:
The return date and time for the White House Chief of Staff, Joshua Bolten, to appear before our Committees on behalf of the White House and bring with him the documents compelled by the subpoenas we issued on June 13 was yesterday at 10 a.m. Mr. Bolten did not do so. Instead, you wrote us that, despite conceding that you have responsive documents in your possession, you refuse to produce even a single one based on a blanket executive privilege claim. We had hoped our Committees’ subpoenas would be met with compliance and not a Nixonian stonewalling that reveals the White House’s disdain for our system of checks and balances.
We urge the President to reconsider this step and withdraw his privilege claim so the American people can learn the truth about these firings. If he is unwilling to withdraw these claims, we call on you to provide more specific information to facilitate ruling on those claims and our consideration of appropriate action to enforce our subpoenas.
On June 13, we issued subpoenas compelling the White House to produce documents related to our Committees’ investigations into the mass firings and replacements of U.S. Attorneys and politicization at the Department of Justice. We did so reluctantly after seeking voluntary cooperation from the White House for three months. Even though the evidence gathered by our Committees shows that White House officials were heavily involved in these firings and in the Justice Department’s response to congressional inquiries about them, the White House has not produced a single document or allowed even one White House official involved in these matters to be interviewed.
Our Committees rejected your “take it or leave it” offer of off-the-record, backroom interviews and severe limits on the scope of our requests as unacceptable, more than three months ago. Since that time, despite our many attempts to narrow the dispute and begin to obtain the information we need, you have not made any effort to work with us on a voluntary basis. Even now, in response to subpoenas authorized by our Committees, you have again merely restated your initial, unacceptable offer. Your proposal is not commensurate with our exercise of the broad investigatory power of Congress.
Our power to investigate has been described as essential to the legislative function by the Supreme Court and “as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 504, n. 15 (1975). Indeed, the Court has specifically recognized that Congress’ “broad” investigatory authority “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes,” and includes the power to “inquire into and publicize corruption, maladministration, or inefficiencies” in the Executive Branch. Watkins v. United States, 354 U.S. 178, 182, 200 n.33 (1957). Moreover, as we have said many times, your proposal would constrain not only our investigation, but also the ability of the American people to learn the truth about these firings.
In fact, the letter you enclosed from Acting Attorney General Clement makes clear that internal White House documents, which you have refused even to discuss making available, contain information directly responsive to our subpoenas. According to Mr. Clement, those documents specifically discuss “the possible dismissal and replacement of U.S. Attorneys,” the “wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.” The subject matter of these documents heightens our concern about the involvement of White House officials in these firings and in the inaccurate testimony given to our Committees about them, including possible obstruction of justice and other violations of federal law. It is precisely for these reasons that we have sought for many months to obtain information from the White House.
Your action today in stonewalling the Committees’ investigations is also inconsistent with the practices of every Administration since World War II in responding to congressional oversight. In that time, presidential advisers have testified before congressional committees 74 times voluntarily or compelled by subpoenas. During the Clinton Administration, White House and Administration advisors were routinely subpoenaed for documents or to appear before Congress. For example, in 1996 alone, the House Government Reform Committee issued at least 27 subpoenas to White House advisors. The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented and damaging to the tradition of open government by and for the people that has been a hallmark of the Republic.
Moreover, your blanket assertion of executive privilege belies any good faith attempt to determine where privilege truly does and does not apply. A serious assertion of privilege would include an effort to demonstrate to the Committees which documents, and which parts of those documents, are covered by any privilege that may apply.
Indeed, the subpoenas themselves specifically stated that for each document withheld, you should provide a description of the nature, source, subject matter, and date of the document; the name and address of each recipient of an original or copy of the document and the date received; the name and address of each additional person to whom any of the contents of the document were disclosed along with the date and manner of disclosure; and the specific legal basis for the assertion of privilege. Such privilege logs have been provided by the White House in previous Administrations, and this Justice Department has provided similar logs in this very matter, which have been used to help resolve disputes about the production of documents. Yet, you have failed to provide any such information.
In addition, at least since the Reagan Administration in 1982, there has been a specific determination and signed statement by the President when executive privilege has been asserted. In accord with this procedure, President Bush himself has issued such assertions during his Administration. See, e.g., Memorandum for the Attorney General re Congressional Subpoena for Executive Branch Documents (December 12, 2001). See also “Procedures Governing Responses to Congressional Requests for Information,” issued on November 4, 1982, and 6 Op. OLC 31 (1982). Yet you have failed to include any such Presidential assertion or even state whether you have now decided to disregard this established procedure.
Please provide the documents compelled by the subpoenas without further delay. If you continue to decline to do so, you should immediately provide us with the specific factual and legal bases for your claims regarding each document withheld via a privilege log as described above and a copy of any explicit determination by the President with respect to the assertion of privilege. You have until July 9, 2007, at 10 a.m. to bring this and any other information you wish to submit to our attention before we move to proceedings to rule on your claims and consider whether the White House is in contempt of Congress.
We were disappointed that we had to turn to these subpoenas in order to obtain information needed by the Committees to learn the truth about these firings and the erosion of independence at the Justice Department. We are even more disappointed now with yet further stonewalling.
Whether or not we have the benefit of the information we have directed you to provide by July 9, we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law.
Sincerely,
PATRICK LEAHY JOHN CONYERS, JR.
Chairman Senate Judiciary Committee, Chairman House Judiciary Committee
cc: The Honorable Arlen SpecterThe Honorable Lamar S. Smith

Source: Senate and House Judiciary Chairmen

So today is July 10. At the very least we should know from the White House what their specific objections are to the subpoenas, and what are the precise documents, testimonies, etc. that are being kept secret from the American people. Right?

Well... , according to news reports this morning, none of us should hold our breath. Here is the "response," of King George's Court:

(P. Baker, D. Eggen, Washington Post, 7/10/2007)

White House counsel Fred Fielding informed lawmakers in a letter Monday that Bush was asserting executive privilege for the second time in two weeks regarding requested testimony by former counsel Harriet Miers and former political director Sara Taylor.
Fielding wrote that Bush was acting 'to protect a fundamental interest of the presidency' by preserving the confidentiality of internal deliberations, including communications 'with others inside and outside the Executive Branch.' Fielding also rejected a demand for a more detailed accounting of Bush's privilege claim.
The decisions pushed Congress and the executive branch closer to a courtroom showdown over the limits of a president's power to shield deliberations by his staff. Democrats accused the White House of stonewalling their request and reiterated that they would seek contempt citations if documents and testimony are not provided.
'The White House continues to try to have it both ways - to block Congress from talking with witnesses and accessing documents and other evidence while saying nothing improper occurred,' said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee.
His House counterpart, Rep. John Conyers Jr., D-Mich., said that 'contrary to what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally.'

Unimpeachable Logic

Leonard Jaffee has meticulously laid out a compelling case for impeaching our Vice-President. The most important point in his analysis is that the decision to impeach can be taken solely by the House and Senate, without constraints from the Judicial Branch.

"Still, for the House and Senate, the Supreme Court's inclination is irrelevant. The Supreme Court does not determine the meaning of "high Crimes and Misdemeanors." The House and Senate do. Their determinations are not subject to judicial review or limited by judicial precedent or any statute. Even if Cheney's coercions are not technical federal or state-law crimes, they were high Crimes and Misdemeanors. They perverted Cheney's office monstrously and harmed, hugely, our Republic."

Now the real question is: why shouldn't we impeach Dick Cheney? With a 28% approval rating, the general public won't shed any tears to see him on the hotseat. Those Rethugs in the House and Senate who may defend him will do so at considerable political cost.

Justice Jackson knew the score in 1952

Wouldn't it be nice to have our constitutionally elected public officials at least show some modest familiarity with the basic concepts of the founding document that established, and defined their limited powers? Is that too much to ask?" Yet perhaps as a medievalist trained in paleography I expect too much from these guys. Well, fortunately for George, Dick, and Alberto there is a Cliff-notes version!

Short, sweet, and readily available, the opinion of Justice Black of the U.S. Supreme Court in the case of Youngstown Sheet & Tube Co. v. SawyerSupreme Court of the United States,1952,

Justice Black (1952) concurring opinion:

"Youngstown Sheet & Tube Co. v. Sawyer
Supreme Court of the United States,

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.


The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.

Taking Back Our Constitution

Many of us will never forgive some of the current Supreme Court Justices-- for effectively installing Dubya as President against the will of a majority of voters. Those Justices that Dubya nominated have largely lived up to liberal expectations, that they would use their power to roll back gains our nation had achieved in the last century. Indeed, our very future as a representative democracy hangs by a slender thread. Fortunately this thread was not snapped in Hamdan v. Rumsfeld. Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy managed to defend our constitutional system of checks and balances against the promoters of tyranny, or the euphemism for tyrannical power known as the unitary executive theory.

Justice Stephens:

Far from making the requisite substantial showing, the Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission. Cf. Quirin, 317 U. S., at 36. Because the charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (KENNEDY, J., concurring in judgment) (observing that “Guantanamo Bay is . . . far removed from any
hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001and the AUMF. That may well be a crime,41 but it is not an offense that “by the law of war may be tried by military commissio[n].” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred
during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject
him to punishment.

Justice Breyer:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

This language is what we should reasonably expect from our Supreme Court. It is not "liberal," by any means, it is merely a calm appeal to the core principles of government that guided our republic from its inception.

We as citizens cannot fail to use the democratic means available to us as voters to prevent any more apologists for tyranny like Scalia, Thomas, or Alito from being appointed to the Highest Court of the land.