February 16, 2006
Extra! Judge Orders US to Lose War on Terrorism
And the "free press" fails to notice or care. (Hat tip to commenter MTF.)
A Clinton-appointed judge, Henry Kennedy (Harvard Law, Washington D.C. practice and judgeship), has abruptly ordered the Department of Justice to hand over a huge bunch of critical and highly classified documents to a "civil liberties" organization, the Electronic Privacy Information Center... a group so radical, even the Electronic Frontier Foundation is leery of them.
Records sought by the group include an audit of the program, a “checklist” guide used to determine whether an individual’s phone or e-mail messages could be monitored, documents showing how information gleaned through eavesdropping had been used, and other legal opinions about the program.
In addition to these documents, the judge ordered the DoJ to give EPIC "a document index and declaration stating its justification for withholding any documents within 30 days," just in case the "privacy" group wants to rummage around to see if there are any cool docs they missed asking for the first time.
Instant Update Department: CBS disagrees with NBC about whether the judge actually ordered the documents released:
CBS News legal analyst Andrew Cohen says that while this is a victory for the plaintiffs, it is by no means a major ruling that will instantly lift the lid of secrecy from the spying program.
"The judge didn't order the feds to suddenly release all sorts of classified or secret information. All the judge did was to tell the Justice Department that it has to speed up its response to a request for information about the National Security Agency program," said Cohen. "And the information that initially will be released will be very unspecific. The big battles are yet to come over how much of this stuff eventually is made public."
However, the MSNBC article quotes Judge Kennedy:
“Given the great public and media attention that the government’s warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary Committee, the public interest is particularly well served by the timely release of the requested documents,” he said.
Let 'em duke it out.
Two other groups joined in the lawsuit, the ACLU and the National Security Archive -- which, despite its official sounding name, is actually a radical-Left private group obsessed with opposing any American foreign policy that involves confronting evil. Thus, they deeply oppose the NSA al-Qaeda intercept program and equate it with cold-war "domestic" surveillance programs that they believe are already discredited. (The ACLU's interests and motivations I think we all know about already.) However, the lead counsel in the case before Judge Kennedy is David Sobel, who is one of the founders of EPIC.
EPIC itself appears to be a radical-libertarian organization much in the mold of the EFF, but much less willing to accept that anything at all should be secret. There is a certain breed of libertarian which I run into all the time: freedom of information becomes such an overwhelming, almost religious cause, that they completely lose all perspective and (for example) demand an end to copyright, full release of all national-security documents without exception or redaction, the release of all personal and private information about government officials -- all under the mantra "information wants to be free."
Then they will turn around and demand complete protection of any and all private information of any private person, again without exception, not even for criminal suspects served with search warrants... presumably on the theory that "some information wants to be withheld." Eventually, it dawns on one that what they really are is simply anti-government: they want to pull down any and all regulation... but they haven't the slightest interest in coming up with anything to replace it. (Even Thomas Jefferson wanted some form of central organization.)
In this case, of course, EPIC, the ACLU, and the National Security Archive completely dismiss (if they've even thought about it) the possibility that details of the NSA program might be secret for good reason; and there is no indication that Judge Kennedy considered that possibility, either -- how could it possibly be vital for national security to keep secret details of all that "domestic surveillance without a warrant?"
I can understand wacky, ultra-libertarian, "information freedom" folks being willing to publish anything without regard to consequences. But a federal judge? Even a Clinton appointee? I assume this will be swiftly overturned on appeal (District of Columbia circuit), because if it isn't, the effect will be catastrophic. The courts may as well order the release of all technical information on building nuclear warheads.
What is most telling is that neither MSNBC nor the Washington Post so much as addresses the possibility that some secrets are worth keeping. MSNBC doesn't even mention it, while the Post has the following deep examination of the conflict between liberty and security:
Given the highly classified nature of the program, the Bush administration is likely to withhold all information about it.
That's it; question resolved. Neither bothers interviewing anybody at the DoJ about whether it's a good idea to publish enough information to allow al-Qaeda to completely bypass our attempts to monitor them; remember, one of the documents the groups requested (that the judge ordered released) is "a 'checklist' guide used to determine whether an individual’s phone or e-mail messages could be monitored." Clearly, if al-Qaeda or other terrorist groups know the criteria by which we decide which communications to monitor, they can tailor their communications not to trigger the monitoring... is that really a reach?
This is completely mad. The purpose of this program is to intercept communications of a terrorist organization sworn to destroy us; Surely this argument must be faced even by those who oppose the program. They should say, "no, it won't damage national security, because..." and provide some sort of reason, no matter how half-baked. To ignore it completely is mystifying and overtly suspicious.
But if one doesn't accept the idea that national security is an important consideration at all, it follows that the non-existent national-security issue can't possibly trump the Public's Right to Know™; there's no reason even to mull the question. And that, alas, is the sorry state to which the Antique Media has sunk under the weight of so much left-liberal ballast.
(On the all-important diction watch, on the WaPo story, they do manage to refer to "warrantless surveillance;" but the body of the article fails to include the word "domestic." The headline does, but that's generally written by someone other than the reporter; hence we cannot award the Post full points. The MSNBC story fails to disappoint: they refer to "President Bush’s domestic eavesdropping program," and then quote Judge Kennedy calling it "warrantless surveillance," hitting both required moves for full credit.)
Hatched by Dafydd on this day, February 16, 2006, at the time of 5:30 PM
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Tracked on February 17, 2006 5:18 PM
The following hissed in response by: Mescalero
David Sobel -- is he any relation to Morton Sobel?
If so, we know exactly where he's coming from.
The following hissed in response by: Dafydd ab Hugh
Morton Sobel from the Rosenberg conspiracy? I doubt they're related. Sobel can't be that uncommon a name.
(I wonder how many unrelated Hitlers in Germany had to swiftly change their names in 1945?)
The above hissed in response by: Dafydd ab Hugh at February 16, 2006 6:26 PM
The following hissed in response by: Lew Clark
Let's get this straight. A Federal Judge orders DOJ, the agency he works for, to hand over highly classified documents to private, uncleared, citizens. DOJ, his agency, says no. What does he do, throw a hissy fit in the DOJ lunchroom? Because he really has no way to enforce his "fatwah". Like he's going to send a group of heavily armed law clerks to work AG Gonzales over if he's not obeyed?
Federal judges do serve for life, but can be removed for malfeasance. Ordering his boss to break the law, may just rise to that standard.
The following hissed in response by: shortz
"abruptly ordered the Department of Justice to hand over a huge bunch of critical and highly classified documents to a "civil liberties" organization"
The judge ordered the the Feds to comply with teh FOIA request.
FOIA requests do not reach classified or top secret documents. So the judge has not ordered classified documents to be turned over. Whoever tells you this is lying or plain old wrong.
Now you can go back and correct your post.
The following hissed in response by: MTF
First, I just want to say all Daffyd's posts from the 16th and the 17th are outstanding, plain and simple.
Second the Judge in question of course doesn't work for the DoJ, as I'm sure you know Lew (I slip up too when angered by idiotic judges!), but for the Judiciary branch (the "other, better legislature", as they like to call themselves).
Third, how exactly do any of the plaintiffs have standing to bring this bizarre lawsuit? Help me on this one, please! Who exactly among the plaintiffs can demonstrate injury from the govenment's efforts to protect us from AQ?? I'm pulling what's left of my hair out on this one.
The following hissed in response by: shortz
"Third, how exactly do any of the plaintiffs have standing to bring this bizarre lawsuit? Help me on this one, please! Who exactly among the plaintiffs can demonstrate injury from the govenment's efforts to protect us from AQ?? I'm pulling what's left of my hair out on this one"
As I explained earlier. The litigant has standing under the freedom of information act. they filed a request and are entitled, by the statute, to expedited processing. That right will be irreperably harmed if they don't get their expedited processing: since you can't expedite something after years of foot-dragging.
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