How good lawyers sprout whiskers and top hats after drinking too much national-security punch

[babylonsister]

Lawyers in Wonderland
How good lawyers sprout whiskers and top hats after drinking too much national-security punch.
By Dahlia Lithwick

A three-judge panel of the 9th Circuit Court of Appeals heard from some funny government lawyers Wednesday who still think "trust me" is a persuasive argument. They were insisting on the dismissal of a series of challenges to the Bush administration's warrantless wiretapping programs, on the grounds that the very existence of the lawsuits pose a threat to national security. (You can listen to the argument at this link.)

The consolidated cases represent appeals from various people who claim to have evidence that they've been spied on. Plaintiffs in one case seek to offer proof of a creepy secret spy room from which AT&T allegedly assisted the NSA in conducting a massive surveillance dragnet. Plaintiffs in a second case actually laid hands on a top-secret government phone log of intercepted calls between an Islamic charity and its American supporters, before the administration demanded its return.

But the secret spy room is a secret, and the secret phone log—although it was accidentally turned over to the plaintiffs—is also a secret. (So much so that it is now "stored in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and a few select federal judges.") The secret phone document is so very secret that government officials had to shred all drafts of the plaintiffs' brief in the case—including a top-secret banana peel.

According to government lawyers, even to discuss the programs at issue in this case is to harm the national interest. Whether or not they even exist is also a secret. Any proof of the programs' existence cannot be tested because of the secrecy thing. One of the judges on the panel, M. Margaret McKeown, complained of feeling "like I'm Alice in Wonderland" at Wednesday's arguments. No wonder. Government lawyers increasingly behave less like attorneys than grim constitutional bouncers.

Early in the argument in the first case, Hepting v. AT&T, Judge McKeown asked Deputy Solicitor General Gregory G. Garre whether President Bush still stood behind his statement that the government does no domestic wiretapping without first obtaining a court warrant. Garre said yes. McKeown wondered aloud how it can possibly be "a state secret" that that the government is not intercepting millions of customers' communications illegally. How can the absence of an illegal program be a secret?

more...

http://www.slate.com/id/2172343/fr/flyout

[kenny blankenship]

1. "Trust Me" turns into "Never Question Me!"

Indeed, "trust me" is only a less alarming way of saying "Never question what I do". The people who created our system of government agreed on one thing above all and referred to it as a structuring principle for the country they left us: that no one is to be simply TRUSTED with power over a country. If the leaders of the Revolution and the framers of the Constitution had believed in "trust" they would not have created overlapping and contending branches of government. If they had believed in trust, instead of believing in distrust, they would have simply created a monarchy or other form of dictatorship. If leaders can be trusted there is no need for democracy.

If you give in to a leader who makes everything a secret, who breaks laws in secret, who defies those laws when found out, and who seeks at every chance to collect unchecked power into his grip and to start wars expanding his use of force beyond the supervision of the other branches of government, and if you do not object when he says Trust me to steal only as much of your liberty as I need to keep you safe, you may soon have to live the rest of your lives hearing him say Never Question What I Do! If leaders could simply be trusted there would be no need for democracy, and if you simply trust your leaders to keep you safe and snug in your bed leaving them to fend off a world of nightmarish threats for you, you will wake up one day and find that there is no democracy.