JUDGES WALLOW IN BUSH'S WONDERLAND

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KARL VICK WASHINGTON POST - Lawyers for the Bush administration
encountered a federal appeals court Wednesday that appeared deeply
skeptical of a blanket claim that the government's surveillance efforts
cannot be challenged in court because the litigation might reveal state
secrets.

"The bottom line here is the government declares something is a state
secret, that's the end of it. No cases. . . . The king can do no wrong,"
said Judge Harry Pregerson, one of three judges from the U.S. Court of
Appeals for the 9th Circuit who grilled administration lawyers at length
over whether a pair of lawsuits against the government should go
forward.

Deputy Solicitor General Gregory G. Garre was forced to mount a public
argument that almost nothing about the substance of the government's
conduct could be talked about in court because doing so might expose
either the methods used in gathering intelligence or gaps in those
methods.

"This seems to put us in the 'trust us' category," Judge M. Margaret
McKeown said about the government's assertions that its surveillance
activities did not violate the law. "'We don't do it. Trust us. And
don't ask us about it.'"

At one point, Garre argued that courts are not the right forum for
complaints about government surveillance, and that "other avenues" are
available. "What is that? Impeachment?" Pregerson shot back. . .

"Well, who decides if something is a state secret or not?" Pregerson
asked. "Are you saying the courts are to rubber-stamp the determination
of the executive of what's a state secret? What's our job?". . .

"Is it the government's position that when our country is engaged in a
war that the power of the executive, when it comes to wiretapping, is
unchecked?" Pregerson asked. No, Garre replied, but he cited an earlier
federal ruling that required courts to give "utmost deference" to
security concerns.

"Well, what does 'utmost deference' mean?" Pregerson asked. Before Garre
could reply, Judge Michael Daly Hawkins asked: "It doesn't mean
abdication, does it?". . .

"If there were in fact widespread surveillance of American citizens,
there would be no [legal] remedy, yes or no?" McKeown asked Garre. He
responded by reiterating that litigation would inevitably lead to
exposing methods that must be kept secret to be effective.

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/15/
AR2007081502434_pf.html


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