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June 24, 2006


Seems to me there are about five sidebars here, not the judicial kind, the journalistic kind: e.g. the FBI accidentally let the defense know about this? Jeez.

Five years after Nine-Eleven and the FBI still doesn't have a decent computer system, its agents still can't hang onto stuff it secretly acquired, and an agent provocateur may be the reason seven alleged terrorists were arrested in Miami.

If I were feeling safer now, I'd be certifiable.

It's a hell of a thing, ain't it?

It could be an interesting wedge against the state secrets privilege, though. How will this work, this using one privilege to hide evidence of the violation of another? The judge may or may not be willing to agree to exclude the transcript itself in order to protect the "state secrets," but will he also enjoin the defendants from discussing it outside the courtroom, now that they've both seen it and told the press about it?

And what about inside the courtroom? If the government gets the transcript excluded as a state secret, can they reintroduce it as evidence against the defendants? I'm sure they'd seek to use it as secret evidence, so as paradoxical as it might seem, you may eventually find the government both seeking to exclude and admit this transcript.

But think about where we are right now. Claiming that the NSA program is a state secret, even though the preznit has copped to it, and the defendants have seen the transcript. We've definitely come full circle on the state secrets privilege, too. Right back to using it to protect the government from embarrassment.

I'd just like to point out that Abu G still hasn't delivered on this threats to go after leakers, not even in the case of the Wired documents. And while I know I'm not the person in the hot seat, it seems like a reasonable approach to keep calling their bluff. They will eventually get forced into a real court case, which they're trying to avoid. So I don't know if these folks can just circulate the documents (well, I guess if it incriminates your client), but it seems like a reasonable approach.

Well, they gave them to the Washington Post, I understand. And when threatened, the Post gave 'em back.

Any other government would be embarrassed, their cheeks redder than a Mandrill butt, but chagrin is unknown in the Bush Regime.

Ditto with the paradox of getting evidence excluded, then admitted. We say whaaaaaaa-aa-aaaaaat?!!! But it seems perfectly reasonable to an administration whose leader signs laws with doesn't-apply-to-me codas.

When this crew finally is ushered out of the White House, I may sue for facial damages caused by the several hundred times my jaw has banged the floor during eight years of reading about one of its latest antics.

MB, can I join you in a class-action suit? I don't think I need to sue as much for facial damages as for brain damage, from all the pounding my head against walls after reading these things.

And, uh, the Washington Post gave them back? *sigh*

They ought to try the NYT, which seems to be revelling in its newfound street cred thanks to Eric Lichtblau and James Risen. Surprise surprise! Real reporting makes your credibility go up!

The hearings this Thursday in the Judiciary committee should provide an interesting revisit to some of the strategies developed in this administration for managing civil freedoms in an atmosphere peppered with the kind of chaos AQ represents.

My take is the administration is doing whatever works, and is stuck in a groove unwilling to entertain the possibility that the reflections coming back at it portray all manner of extralegality in its application of its authority to what should be more like due process.

One of my favorite writers on the signing statement, which topic KX addresses more directly in the linked March 2006 KXpost, is the timely Univ of Miami OH professor Chris Kelley, who this week writes a detailed and well hyperlinked essay about the Specter hearing and its invited witnesses.

A good journalist on this topic is Charlie Savage of the Boston Globe.

All the pay-as-you-go journalism these days by some of the brightest reporters is daunting, and makes information gathering time consuming; it would be nice if NYT and the Globe abandoned this kind of regressive fee-based news reporting. It is nice to read those organs but is impossible to use them for research beyond the 14-30 day archival threshold when all that excellent writing disappears forever except to those who pay that tribute.

I think the ACLU and EFF will gain some partial wins in the numerous cases now in the courts to rein in the excesses in how the administration is managing its own activities with respect to fourth amendment issues; but Bush has just succeeded in having appointed to the supreme court two conservatives known to favor less fourth amendment rights, though I remain optimistic these two new justices will conduct their office with meticulous care; they seem to have that quality in common.

Learning about the OR case only from the linked article, I note on the surface it fits a classic profile, and I could understand why its very stereotypicality attracted government attention. I have not read the court documents. The government has made a few mistakes in tracking clues, like the Pacific northwest person whose fingerprint was very similar, and whose religious affiliation fit the profiling algorithm, all of which caused him considerable grief and harrassment until the government admitted he was not implicated in civil miscreances; fortunately, but after a long ordeal. JDean had an interesting article last week about the states secrets shield, and the Detroit judge who is going to make the government appear again in court to state-why it can't-state-why.

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