In a four-paragraph letter on Wednesday announcing that the Bush administration had reversed its position and would submit its domestic surveillance program to judicial supervision, Attorney General Alberto R. Gonzales used one phrase three times. A secret court, he said, had fashioned a way to allow the program to be monitored by the judiciary without compromising the need for “speed and agility.”
That phrase also captures, some critics say, the administration’s moving-target litigation strategy, one that often seeks to change the terms of the debate just as a claim of executive authority is about to be tested in the courts or in Congress.
On Wednesday, the administration announced that an unnamed judge on the secret court, in a nonadversarial proceeding that apparently cannot be appealed, had issued orders that apparently both granted surveillance requests and set out some ground rules for how such requests would be handled.
The details remained sketchy yesterday, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts.
Haven't we seen this Bush behavior before? Remember the White House visitor logs and Jack Abramoff? Let's go back to the January 6, 2007 CNN News story:
WASHINGTON (AP) -- The White House and the Secret Service quietly signed an agreement last spring in the midst of the Jack Abramoff lobbying scandal declaring records identifying visitors to the White House are not open to the public.
The Bush administration did not reveal the existence of the memorandum of understanding until last fall.
The White House is using it to deal with a legal problem on a separate front, a ruling by a federal judge ordering the production of Secret Service logs identifying visitors to the office of Vice President Dick Cheney.
In a federal appeals court filing three weeks ago, the administration's lawyers used the memo in a legal argument aimed at overturning the judge's ruling. The Washington Post is suing for access to the Secret Service logs.
The five-page document dated May 17 declares that all entry and exit data on White House visitors belongs to the White House as presidential records rather than to the Secret Service as agency records.
Therefore, the agreement states, the material is not subject to public disclosure under the Freedom of Information Act.
The memo last spring was signed by the White House and Secret Service the day after a Washington-based group asked a federal judge to impose sanctions on the Secret Service in a dispute over White House visitor logs for Abramoff.
The chief counsel to another Washington-based group suing to get Secret Service logs calls the creation of the memo "a political maneuver couched as a legal one."
"It appears the White House is actually manufacturing evidence to further its own agenda," Anne Weismann, a Justice Department lawyer for 19 years and now chief counsel to Citizens for Responsibility and Ethics in Washington, said Friday.
The Bush administration signed a secret memo with the Secret Service, transferring the White House visitor logs from the Secret Service control to the White House control, de-railing any legal challenges to these visitor logs in relation to the Jack Abramoff scandal. And now the administration is presenting this letter written by Attorney General Gonzales, claiming that an unnamed judge on the secret court has granted the administration a blanket legal authority for the NSA to spy on anyone, and that this unnamed judge's decision cannot be appealed. And finally, we're told of this unnamed judge's decision just before lawsuits challenging this warrantless spying program is about to go to court. Continuing with the NY Times article:
Shortly before the Supreme Court heard a set of three detainee cases in 2004, the administration reversed course and allowed two Americans held incommunicado by the military to meet with their lawyers, mooting that issue.
After the court ruled that one of the men, Yaser Hamdi, could challenge his detention in court, the administration instead freed him and sent him to Saudi Arabia.
And just as the Supreme Court was considering whether to review the case of the second man, Jose Padilla, he was transferred to the criminal justice system last year, mooting his appeal.
[....]
In the case of the eavesdropping program, the administration continues to maintain that it is free to operate without court approval. Its decision to submit to the secret court, administration lawyers said, was voluntary. At a briefing Wednesday, almost as an afterthought, a senior Justice Department official said, “There’s obviously an advantage to having all three branches involved.”
The announcement about the surveillance program came two weeks before a federal appeals court in Cincinnati was to hear the first appellate argument about the lawfulness of the program. Government lawyers now say that case is moot, but their claim is open to question.
The usual rule is that cases seeking relief in the future are indeed moot when the relief they seek is granted. But there is an exception, said David Cole, a lawyer with the Center for Constitutional Rights, which has challenged the program in a separate lawsuit filed in New York.
He cited a series of Supreme Court decisions in which the defendants had voluntarily done what the lawsuits were seeking. Such cases are moot, the court ruled in 1968, for instance, only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
[....]
A third case, from Oregon, is almost certainly not moot. In addition to asking the court to stop surveillance without warrants in the future, that suit asks for money as damages for past surveillance.
The Oregon case, brought by an Islamic charity and two of its lawyers, differs from the Cincinnati appeal and the New York suit because the plaintiffs in it say they have seen a classified document confirming that their communications were actually intercepted.
What else can I say? The Bush administration will flaunt the law, change the law to their benefit, and even manufacture evidence favorable to their case. And they are doing it again here with the warrantless spying program.
What do you expect with a bunch of criminals?
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