I wonder how long it'll take before... whoops, nevermind.

by Kagro X

I am reminded by commenter JohnLopresti that Judge Anna Diggs Taylor in Detroit yesterday entertained the first courtroom hearing on a motion by the government to dismiss a legal challenge to the NSA's domestic spying program.

Post-Hamdan, of course, there was much speculation about the future of the NSA program and its legal underpinnings. It was observed, for instance, that:

That means that the administration has no defenses to fend off charges that they deliberately violated the criminal law -- and continue to do so -- by eavesdropping on Americans without warrants, or torturing people in violation of the Geneva Conventions and/or the McCain Amendment, or violating the National Security Act of 1947 by concealing major intelligence activities from Congress. Those are criminal offenses. And the Supreme Court just expressed unbridled hostility towards their only defenses they have to those crimes.

And not only was this crystal clear, but:

Anyone who suggests that that is a meaningless development and that Bush officials are unaffected by them has embraced a cartoon super-villain version of the administration which is just not real.

Ladies and gentlemen, meet your first cartoon super-villain:

In court Monday, Justice Department attorney Anthony J. Coppolino urged Taylor, a longtime judge appointed to the federal bench by President Carter, to throw out the case on two grounds. None of the plaintiffs had shown that they had suffered injury and therefore they had no legal standing to sue, he said, and that if Taylor decided the plaintiffs had standing, the case still should be dismissed because of the "state secrets" doctrine.

The "state secrets" privilege, laid out in a Supreme Court decision in 1953, prohibits disclosure of information in legal proceedings when there is "a reasonable danger" that the evidence would "expose military matters which, in the interest of national security, should not be divulged."

That is clearly the issue in this instance, Coppolino said, because the case involves a challenge to an "ongoing program" of surveillance against Al Qaeda that is integral to the Bush administration's war on terrorism.

He said President Bush had the authority to launch the program after Sept. 11 because of his inherent authority and because of the authorization for use of military force issued by Congress after those attacks.

Yes, at the first opportunity, post-Hamdan, for the Justice Department to offer up its new defense for NSA spying, we are presented with... the old defense. The discredited one. The one "the Supreme Court just expressed unbridled hostility toward."

And while I have little doubt that Judge Taylor will take Hamdan's legal reasoning in the correct perspective, the issue here was never whether the courts would see the "inherent authority" and AUMF arguments differently, but whether the Bush "administration" would.

Despite today's otherwise good news that the Pentagon would be changing policy to comply with the ruling, at least with respect to the use of military tribunals, more questions obviously remain.

Will the "administration's" compliance extend beyond the four corners of Hamdan? Will they comply only with respect to the tribunals? Or will they see the writing on the wall regarding torture? NSA spying? Anything other than Hamdan's case itself and only Hamdan?

So far, where the rubber meets the road, they have not.

Comments

[freepatriot]

according to Hamdan, george bush is a war criminal

to say that we are going to afford minimal Geneva Protections to the prisioners at GITMO is an open admission that the Geneva Conventions have been violated up till now

violations of the Geneva Conventions are CRIMES AGAINST HUMANITY

we sentenced Wilhelm Kietel to DEATH for disregarding the Geneva Conventions

so let's support the rule of law here

lets impeach george bush and try him for crimes against humanity

[Steve]

I never had a case before Judge Taylor when I practiced in the EDMI, but she's certainly a good draw for the plaintiffs, no doubt about that.

[emptypockets]

well, I guess not even one with time-tested faith in the administration's respect for the law would have thought they would offer NO defense of the NSA program no matter what was decided in Hamdan.

Perhaps it's not so much that they chose to go with an already-rejected defense, as much as it was that that's all they've got?

[Kagro X]

I thought about that at first, but given the "administration's" predilection for delaying tactics in cases that directly test its stupid "legal" theories, I'm surprised they didn't ask for a continuance to regroup after Hamdan.

[DeanOR]

Well, not to worry. Bush has said in his plain-spoken manner that he takes the court's "opinion" "seriously". In Texas Republicanese that means you don't give a flying f**k and you're going to delay and fudge and lie and manipulate and go on to your next crime. Call me cynical (but not defeatist, we're going to win and send these bums packing). And I think if we really pinch our pennies we can pay off the national debt in about 10,000 years.