The Secrecy Catch-22

By Cernig

Just out on the AP newswire is an explnation of just how the bush administration plans to keep secret it's warrantless spying on Americans - by invoking secrecy as its defense.

The Bush administration's warrantless wiretapping program has a built-in feature the Justice Department believes may shield it from ever being challenged as unconstitutional: secrecy.

The administration has acknowledged it intercepted some U.S. telephone conversations without warrants as it hunted for terrorists. Whose calls? The government isn't saying. And since only those who were spied on have grounds to sue, it's almost impossible to mount a successful legal challenge.

A federal appeals court in Ohio dismissed one such challenge last month because the American Civil Liberties Union and other groups could not prove the government had listened to their conversations. The court did not rule on whether the program was constitutional.

Unless the government decides to release information about its wiretaps - as part of a criminal case, for example - the Justice Department said Monday the constitutional question may never be answered.

A senior Justice Department official made the comments during a briefing before a hearing Wednesday in San Francisco, where lawyers are trying to challenge the program's legality. The official, who insisted on anonymity because of the pending litigation, said such challenges must first clear a difficult hurdle.

``They would have to somehow get, through discovery or admission from government, that they had in fact been surveilled,'' the official said.

Attorneys for an Islamic charity say they can prove just that. Because of a government mix-up, the Al-Haramain Islamic Foundation received what charity attorneys said was a National Security Administration log of calls intercepted between the charity and its lawyers. Armed with that information, the charity is challenging the program in a San Francisco court.

The Justice Department refuses to say whether the charity's calls were intercepted, but it wants the case thrown out because defending it would require the government to disclose state secrets.

Asked whether the Justice Department saw any way someone could challenge the surveillance program, the official replied, ``In the current context, 'No.''

Shall I mention that the spineless Democrats on the Hill helped preserve that current context recently? I think I shall.

From an ACLU letter to Gonzales today:

In particular, the Act confers on you the authority to issue year long orders for entire spying programs that identify neither the people nor the facilities that will be tapped. The only requirement is that the communications be of an international character - that at least one leg of the email or call is overseas. By definition, this new program will sweep in all those calls where the other leg is in the U.S., and will do so without court or congressional review. While we have long supported legislation that would allow our government to intercept foreign to foreign calls, this new, warrantless interception of Americans' international communications is far more than what the Administration asked for and what we believe the Constitution allows.

Further, the legislation was silent on how to treat these communications to which someone in the U.S. is a party. We are gravely concerned that Congress chose not to include mandatory protections for American communications, and instead left all such decisions to the Justice Department without further guidance.

Because you are solely responsible for determining how U.S. persons will be protected in this new program, we respectfully request a meeting with you to discuss in more depth how the Justice Department will be using its new authority. In particular, we would like to discuss:

- Whether your new authority will be used to collect all international communications coming into and out of the United States,

- Whether you plan to return to the Foreign Intelligence Surveillance Court when you discover that a certain line or person has significant contact with the United States, and

- How information gathered on people in the United States will be used and what civil liberties safeguards will be put in place for instances in which information is collected on individuals who have no intelligence value to the government.

Congress left all of these questions to your discretion and we eagerly look forward to discussing with you how the Justice Department intends to deal with the serious civil liberties issues implicated by this new law.

And of course the ACLU will be told that they can't be given any of this information for reasons of national security.

Yet it seems obvious that an administration which has gone to such pains to sew up every possible avenue of oversight expected to have some scrutiny devoted to its surveillance programs and decided well in advance that such scrutiny must not be allowed to proceed. The only possible reason for such effort is that they have something to hide.