White House contorts rule of law to protect its secrets

Now it becomes clear why Gonzales made such a big show of submitting the illegal domestic eavesdropping program to overview by the FISA court. In a typical ploy, such as they used in the Padilla case, when it looks like they're about to lose in court, they suddenly decide to comply with the law and move for dismissal on the premise that the grounds of the complaint are moot. This is the argument they make for dismissing the current appeal of U.S. District Judge Anna Diggs Taylor's ruling that the TSP is unconstitutional. One hopes the court won't fall for it. As the plaintiffs argue, absent a ruling, there is nothing to preclude the government from reinstituting the program at any time they feel the public's attention has been sufficiently diverted by some other White House designed crisis.

Of course, this is only one of many cases filed relative to the illegal surveillance and even more disturbing are the administration's tactics in a related case filed last year in Oregon. At the root of this is a document mistakenly provided to the plaintiffs.

In August 2004, the Treasury Department’s Office of Foreign Assets Control, which was investigating an Oregon charity, al-Haramain Islamic Foundation, inadvertently provided a copy of a classified document to a foundation lawyer, Lynne Bernabei.

That document indicated, according to court filings, that the government monitored communications between officers of the charity and two of its lawyers without a warrant in spring 2004.

The government ordered all copies, which had circulated rather widely here and abroad, to be returned and went as far as to seize an opposing counsel's computer in order to scrub the document. They kept the computer, that no doubt contained privileged attorney-client work product, for weeks. Furthermore, they requested the doc be struck from the record and the plaintiffs not be allowed to even think about it, much less mention it. The judge thankfully didn't go that far.

However, the circumvention of normal court processes remain deeply troublesome. The government files secret briefs that no one can see except the judge and the judge can only view them in a secret room at Justice by appointment. The judge is not allowed to keep a copy and the documents are not filed with the court, even under seal. Essentially, the government files the paper with itself but assures us the chain of custody is secure and the records can not be altered. If you believe that I have a piece of oceanfront property in Arizona I'm still trying to sell.

Furthermore, the judges are instructed to compose their decisions on government provided computers. I leave it to your imagination as to why they would insist on that. The government also asserts the right to seize exhibits already filed from the courts. It all forms a distressing pattern of White House attempts to redefine the rule of law.

“These are the basics that we take for granted in our court system,” Professor Marder, a litigation secrecy expert, said. “You have two parties. You exchange documents. The documents you’ve seen don’t disappear.”

But not to worry. The White House is thinking about that issue.

Mr. Boyd of the Justice Department said the government “continues to explore with counsel ways in which the classified information may be properly protected without any intrusion on the attorney-client privilege.”

But if in the meantime they manage to completely destroy our judicial system -- well -- it's just another quaint vestige of democracy anyway. Who needs it when you have a "war empowered president" making unilateral decisions for you?