The courts and Congress affirmatively conceal and protect lawbreaking

The Supreme Court's refusal today to rule on the NSA spying program means that the telecom lawsuits are the last remaining hope for finding out what happened and determining its legality.

Published February 19, 2008 4:17PM (EST)

In August, 2006, Judge Anna Diggs Taylor became the first federal judge ever to rule on the legality of the Bush administration's NSA warrantless spying program, and she ruled that the NSA program violated both statutory law as well as multiple rights guaranteed by the U.S. Constitution. The case was brought by the ACLU on behalf of numerous Muslim lawyers, journalists and others, who argued that the existence of the warrantless eavesdropping program rendered them unable to perform their jobs.

The Bush administration appealed that decision to a three-judge panel of the Sixth Circuit. In July of last year, two of the three appellate judges voted to reverse Judge Diggs Taylor's ruling, not because they disagreed with her conclusions about the program's legality. Instead, they found that the plaintiffs lacked "standing" to challenge the legality of the program -- and courts were therefore barred from ruling on their claims -- because the plaintiffs were unable to prove that they were actually subjected to the warrantless eavesdropping (due to the absolute secrecy under which the program operates).

The third member of the appellate panel, Judge Gilman, dissented from that finding, holding that plaintiffs were permitted to proceed with the lawsuit, and then proceeded to find that the NSA program was illegal. Thus, even to date, the only two judges ever to rule on the legality of Bush's NSA program -- District Judge Diggs Taylor and the Sixth Circuit's Judge Gilman -- have both ruled that it was illegal.

The ACLU appealed the Sixth Circuit's procedural ruling to the U.S. Supreme Court, asking the Court to hear the appeal. Today, the Court announced that it would not hear the appeal, thus bringing an end to the ACLU's legal challenge to the NSA program (even though no judge has ever ruled the program legal):

The justices' decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.

The Supreme Court accepts only a tiny percentage of cases for appeal, and under its long-standing rules, a refusal to hear a case does not constitute agreement with the lower court's decision. It simply means that the Court, for whatever reasons, will not decide the appeal.

This decision does mean, however, that EFF's pending lawsuits in San Francisco against AT&T, Verizon and the other telecoms are now the sole remaining vehicle for finding out what the Bush administration actually did when spying on Americans for years without warrants, and as importantly, is the last hope for obtaining a judicial ruling as to whether the President broke the law and violated the Constitution when doing so. If Jay Rockefeller and Dick Cheney have their way and retroactive amnesty is granted to these telecoms, those lawsuits will be forever dismissed and Americans will remain indefinitely in the dark about how our own Government spied on us, and will forever lose the opportunity to have a court rule whether the Government broke the law and violated our Constitutional rights.

In March, 2006, the Senate Intelligence Committee voted (along party lines) against holding hearings and conducting an investigation into the warrantless NSA program. Thus, Congress has never fulfilled its duty of meaningfully investigating the spying scandal. Identically, the courts have accepted the Bush administration's procedural arguments as to why they are barred from ruling on the legality of the program. Thus, despite agreement among legal experts across much of the political spectrum that George Bush and company committed serious felonies in spying on Americans without warrants, the two other branches of government have been completely closed off (willingly) in investigating what happened or even in determining whether the law was broken.

Think about the information that has been completely concealed -- all the things which we, as Americans, remain in the dark about with regard to our Government's illegal spying on us. We do not know which Americans were spied upon without warrants, how they were chosen for surveillance, whether they had any connection to terrorists, and/or what was done with the information obtained. Despite the fact that we enacted laws 30 years ago making warrantless spying a felony, we have no idea what was done with the warrantless spying powers the President arrogated unto himself and then used for years.

More significantly, recall that in May of last year, former Deputy Attorney General James Comey testified that through 2004, the Bush administration was doing something with domestic surveillance that was so patently illegal, so extreme and unconscionable, that the entire top level of the DOJ -- including John Ashcroft, FBI Director Robert Mueller, and Comey -- threatened to resign if it continued. These are the same officials who would go on to endorse the NSA warrantless spying program. That's how extreme they are. Yet whatever it was that the Bush administration was doing back then was so illegal that even these right-wing extremists would have resigned in protest.

What was the Bush administration doing that provoked such an extreme reaction? What laws where they breaking? Even though (according to Comey) those activities ceased in 2004 -- and there is thus no arguable ground for continuing to conceal those activities -- we still have no idea what they did. We're completely in the dark about all of it. And every avenue for our finding out -- Congressional oversight and judicial accountability -- has been blocked, except for the lawsuits against the telecoms. And Congress is on the verge of blocking that final path to discovery and accountability as well.

Don't these facts just speak volumes for themselves? Imagine if, say, Vladimir Putin was accused by his own top officials of systematically spying on Russian citizens for years in ways that were patently illegal, but he then manipulated the courts to ensure he was never accountable, and had his political allies in parliament block any investigations, so that the activities remained concealed forever and he was never made to answer for what he did. Think about the grave denunciations that Fred Hiatt, Charles Krauthammer and the State Department would be issuing over such authoritarian and lawless maneuvering.

That's exactly how our country operates now. When high political officials here are accused of breaking the law, they need not defend themselves. Congress acts to protect and immunize them. The courts refuse even to hear the lawsuits. And executive branch officials are completely shielded from the most basic mechanics of the rule of law.

No hyperbole is necessary to sustain the Putin comparison. It's demonstrated by the facts themselves, by how our system of government works now. None of the "great controversies" of the Bush years, involving multiple accusations of lawbreaking, war crimes and other forms of serious corruption, has resulted in any legal process or investigations or ajudications because our government officials have been vested with omnipotent instruments to shield themselves from accountability, or even investigation, of any kind.

In a minimally functioning Republic, when our political leaders are accused of concealing wrongdoing, Congress investigates, uncovers what happens, and informs the American people. When political leaders are accused of breaking the law, courts decide whether that occurred. None of the branches of government do that any longer. They do the opposite: they not only fail to perform those functions, but they affirmatively act to block investigations, help the conduct remain concealed, and ensure that there is no adjudication. When it comes to ensuring that the NSA spying scandal specifically remains forever uninvestigated, secret, and unexamined, telecom amnesty will be the final nail in this coffin, but it is merely illustrative of how our political culture now functions.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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