The Elephant Goes To Court

If the Palestinians' election of Hamas to power didn't bring home to you that a democracy and personal liberties aren't synonymous, then the Bush Administration with its campaign financing carrots and its NSA secret warrantless eavesdropping program should. If, after reading this article and its companion, The Elephant Mired In Political Muck, you still believe all is fine and well in the United States, I'd suggest you need to do some research.

In different contexts elsewhere, the independent and co-equal branches structure that places Americans in control of their government through the rule of law has been outlined: the Legislative Branch, Congress, enacts the laws, the Executive Branch enforces the laws and the Judicial Branch adjudicates the laws.

In addition to attacking the nature of democracy and diluting our liberties, the Bush Administration, through its notion of Executive Unity, has launched an assault on the co-equal status of the Executive and Legislative Branches.
When the Bush Administration rejected Congress's request to have former Attorney General John Ashcroft, his former Deputy James Comey and other officials testify about the NSA warrantless domestic spying program's legality, it severely crippled our lawmaker's ability to exercise their mandated responsibilities.

As White House Press Secretary, Scott McClellan spun it, the NSA program does not require "Congressional authorization" but the Administration is "open to ideas regarding legislation." Isn't this what the Chairman of the Senate Intelligence Committee said yesterday, as reported in The Elephant Mired…?

How's a member of Congress to know whether the NSA domestic spying program requires new legislation to protect the peoples' liberties? The Bush Administration refuses to divulge even the most fundamental description of who's been and is being spied upon, how they're being spied upon and who's involved in the spying.

In an earlier article Average American, revealing a crying need for a remedial course in American History and Government, challenged critics of the NSAs secret spying program with, "If you have nothing to hide, why are you so paranoid that the government reads your e-mail and listens to your phonecalls [sanitized version]." The reply was, "Because it's unconstitutional -- it violates my right to privacy -- and it's probably illegal because it violates the FISA!"

However, we may apply similar logic to the Bush Administration's secrecy -- what are they hiding? The Constitution does not afford the Bush Administration a right to secrecy so why are those folks so adamant in refusing to disclose the details of their domestic spying program if they have nothing to hide?

At this point, The Bush Administration has stymied all Congressional attempts to ensure that the secret NSA domestic spying program is consistent with the laws protecting Americans' rights. The NSA domestic eavesdropping program remains a deep, dark secret. So much for that Co-Equal concept!

However, the third Co-Equal Branch, the Judiciary, has cracked the door to beam some sunshine on the NSA spy program. District Court Judge Henry Kennedy ruled yesterday that the Department of Justice must provide, within 20 days, those documents requested through the Freedom of Information Act by the American Civil Liberties Union, the Electronic Privacy Information Center and the National Security Archive Fund. Kennedy ruled against the DoJ contention that, because of the classified nature of the secret NSA program, the department should decide on its own what documents it will provide and the timetable for releasing them.

In his ruling, Kennedy wrote, "President Bush has invited meaningful debate about the warrantless surveillance program. That can only occur if DoJ processes its requests in a timely fashion and releases the information sought."

This case should not be confused with the separate lawsuits filed by the ACLU and the Center for Constitutional Rights against President Bush and other top officials challenging the legality of the NSA domestic spy program under FISA.

So -- stay tuned. It ain't over 'til it's over, as Yogi said, and Arlen's Senate Judiciary Committee has yet to take a stand on the White House refusal to let Ashcroft and Tomey out to testify. Say, John Kyl's on that committee, isn't he?  Wonder what he thinks of all this...