The NY Times reports on questionable tactics used by the DOJ in defending against civil suits brought against the government for its domestic spying program:
The Bush administration has employed extraordinary secrecy in defending the National Security Agency’s highly classified domestic surveillance program from civil lawsuits. Plaintiffs and judges’ clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies.
Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.
. . .
In ordinary civil suits, the parties’ submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.
. . .
Soon after one suit challenging the program was filed last year in
, Justice Department lawyers threatened to seize an exhibit from the court file. Oregon
This month, in the same case, the department sought to inspect and delete files from the computers on which lawyers for the plaintiffs had prepared their legal filings.
The tactics, said a lawyer in the
case, Jon B. Eisenberg, prompted him to conduct unusual research. Oregon
“Sometime during all of this,” Mr. Eisenberg said, “I went on Amazon and ordered a copy of Kafka’s ‘The Trial,’ because I needed a refresher course in bizarre legal procedures.”
A federal district judge in the case, Garr M. King, invoked another book after a government lawyer refused to disclose whether he had a certain security clearance, saying information about the clearance was itself classified.
“Frankly, your response,” Judge King said, “is kind of an
in Wonderland response.” Alice
The DOJ’s actions in these cases are representative of the administration’s disdain for the rule of law. The DOJ is led by a man who thinks the right of habeas corpus is dispensable and sees little need for involvement by the other two branches of government in matters of national security.
In trying to subvert normal judicial processes in these cases, the DOJ seems to be driven more by political considerations than those of national security.
In August 2004, the Treasury Department’s Office of Foreign Assets Control, which was investigating an
charity, al-Haramain Islamic Foundation, inadvertently provided a copy of a classified document to a foundation lawyer, Lynne Bernabei. Oregon
That document indicated, according to court filings, that the government monitored communications between officers of the charity and two of its lawyers without a warrant in spring 2004.
“If I gave you this document today and you put it on the front page of The New York Times, it would not threaten national security,” Mr. Eisenberg, a lawyer for the foundation, said. “There is only one thing about it that’s explosive, and that’s the fact that our clients were wiretapped.”
To the administration, domestic politics are a key element of any national security strategy, since the way they see it, if they are not in charge, we’ll all be killed in our sleep by the Islamofascists. But as Tim at Balloon Juice points out, by eliminating meaningful oversight by the other branches of government, the executive branch and the GOP have (a) greatly increased the likelihood of failure of their preferred policies and (b) tied those failed policies tightly around their own necks in the eyes of voters.
What baffles me is that once the GOP owned the war lock stock and barrel, someone (say, Pat Roberts) thought it would be a good idea to kill off the faintest hint of oversight. In free market terms that’s the same as a business sinking its resources and reputation into a project and then taking off to
Mauifor a few months while the contractor does his thing unsupervised. That suggests an awful lot of confidence in the contractor, n’est-ce pas? It suggests that Republicans considered their leader practically infallible, incapable of the quotidian failures that characterize ordinary humans, not unlike the leader cult barbs (Dear Leader etc) half-jokingly brought up by lefties like me. After all, assuming that the GOP Congress were rational beings with some vestigial interest in their political future, what other explanation makes any sense?
In the end, strongarm tactics like those used by the DOJ are counterproductive and self-defeating. But we may have to wait for new leadership in the White House and in the AG’s office to repair the damage that has been done by the current occupants.