First, the good news: out in Portland, Oregon, a federal judge is finally being asked, head-on, to exclude as fatally tainted evidence collected by the NSA's illegal domestic surveillance program. And if the track record of the legal theory under which the exclusion is being sought is any indication, it's a sure bet that the evidence is out!
So what's the bad news?
The bad news is that the evidence in question is a transcript of a conversation intercepted by the NSA between the defendants and their attorneys, which the government seeks to exclude under the "state secrets" privilege!
U.S. Justice Department lawyers on Wednesday delivered on their earlier promise to a judge to assert the "state secrets privilege" in the lawsuit filed by attorneys for the former Al-Haramain Islamic Foundation.
[...]
In the suit filed last February, Al-Haramain attorneys submitted a sealed document to U.S. District Judge Garr King that they claimed was proof the NSA illegally eavesdropped on phone conversations between one of the foundation's directors in Saudi Arabia and its U.S. attorneys.
The government says the top-secret document was accidently given to Al-Haramain attorneys and should be returned. They have filed secret explanations to King, who is left with a choice of dismissing the case or ordering the government to back up its claim about damaging national security - a step few judges have ever taken.
Yes, believe it or not, the first solid evidence proving the existence of the NSA spying program was accidentally turned over to the defense by the FBI. And yes, that evidence was in fact a transcript of privileged conversations between the defendants and their attorneys, intercepted by the NSA, and turned over to the FBI and the prosecution!
And no, the question will not turn on the normally unassailable attorney-client privilege. Rather, the government seeks to prevent the use of the evidence to prove the existence of the illegal spying program, on the grounds that it would reveal vital "state secrets." Nevermind that the FBI has already revealed its existence by accidentally turning over the transcript. And nevermind that the President of the United States has already acknowledged its existence on national television.
Now, as shocking as it is, if it's news to you that this "administration" claims among its "inherent powers" the right to eavesdrop on privileged attorney-client communications, then you haven't been paying attention.
The National Security Agency has the authority to listen without warrants to conversations between lawyers and their clients and doctors and their patients if a connection to Al Qaeda is suspected, the Justice Department told Congress in a report released Friday.
How's that? Does that clear it up for you? More detail? OK:
"Although the program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception" if they met the other requirements of the eavesdropping program, including if there were a suspected link to Al Qaeda and if one party were outside the United States, the Justice Department said. It did not say whether that authority had been used.
Well, it has now! But like any good playground bully, they're going to resort to old-fashioned playground tactics. They've invoked yet another "state secrets" claim to call for a "do-over."
This is, presumably, the part where they pull out their Men in Black mind-erasing lasers. Glasses on, everyone!
Now, this last bit is a little superfluous, but I really want to drag this bit out from something I actually wrote on this case before. In my last go-round, I trotted out a quote from Barney Frank, addressing the issue of impeachment. And he gave the standard, glib answer of the Congressional Democrat:
Impeachment is an outlet for anger and frustration, which I share, but politics ain't therapy. Bush would much rather debate impeachment than the disastrous war in Iraq.
Couple things about that, Barney. One is the same point I was making last time: take a serious look at what "inherent powers" this "administration" is claiming, and tell me again how impeachment is nothing more than an outlet for anger and frustration. The second is that I don't know whether he's just dumb, or crazy like a fox, but Bush ain't afraid to debate Iraq anymore.
So with the "Culture of Corruption" meme having apparently run its course, and Rove back to his old self, turning weaknesses into strengths, and convincing Democrats that they shouldn't talk about Iraq by getting them to believe he wants them too, what's our next excuse brilliant strategic reason for shrugging off our Constitutional responsibilities?