Yesterday, a federal court of appeals in California heard oral argument in a case, Hepting v. AT&T, involving the Bush administration’s unauthorized domestic spying program. Here’s how two of the judges reacted to the arguments made by administration lawyers that no court can review the legality of the program because doing so would require the disclosure of “state secrets”:
“The bottom line here is the government declares something is a state secret, that’s the end of it. No cases…. The king can do no wrong,” said Judge Harry Pregerson[.]
“This seems to put us in the ‘trust us’ category,” Judge M. Margaret McKeown said about the government’s assertions that its surveillance activities did not violate the law. “’We don’t do it. Trust us. And don’t ask us about it.'”
Bush’s lawyers are attempting to slam the courthouse doors shut on Americans who have reason to believe that they were illegally wiretapped without a warrant and on American soil. And they’re effectively telling the federal courts that they don’t have a right to review the way the administration acts – that the judges should just shut up and mind their own business. But the drafters of the Constitution created a divided government, with its checks and balances, for a very good reason. They didn’t want a King George! The same is true today.
The candor and skepticism of the judges at yesterday’s hearing is encouraging, but this case will ultimately be decided in the Supreme Court. Lucky for King George, he already has four justices waiting in the wings – two from his father, and two of his own – who have already shown themselves ready and willing to show regular Americans to the courthouse door and slam it in their faces.
It is disgraceful for the administration to use the “state secrets privilege” to conceal its own misconduct and blundering. In fact, we can conduct surveillance against our enemies and protect our state secrets while upholding civil liberties and the rule of law. Democratic leaders are working on a legislative fix for when Congress returns in September.