Barack Obama has done a terrible thing. He has filled me with hope. Among the things I hope is that he will put an end to secret government. Today, the Foreign Intelligent Surveillance Review Court (the FISA Court) issued a special public opinion basically rubberstamping the activities of the Bush years. It will surprise no one to read that the author and chief judge is a conservative who was selected for this court by Rehnquist. It was important to issue the ruling now, I imagine, so that it will exonerate Bush of everything, but not provide help to the Obama administration in its counterterrorism efforts. In other words, the same ruling six months from now might have implicitly exonerated some of the new Obama administration.
The ruling is pure travesty, at least what we can read of it. So much is redacted, including the name of the petitioner, that it is very hard to make heads or tails out of it. The citations are to sealed cases. The facts are all removed. What is left is bare legal conclusion, without a disclosed basis in fact or law. That violates the traditions of our law. It violates the rule of law.
Even all the redactions cannot conceal just how much secret government there is these days. This all needs to be exposed and finished. Please, Barack Obama, don't give in to those on your staff who tell you that you will look weak on terrorism and defense unless you continue Bush's policies. Eric Holder's clear opposition to torture is a start. However, you must avoid the temptation to let the terms "bipartisan" and "forward-looking" foreclose inquiry into the past. Terrible things fester in the dark. Secrecy needs to be limited to the handful of facts that would be damaging in ongoing investigations. But the process of government must be open. And the past must be opened. Sunlight, as Justice Brandeis wrote, is the best of disinfectants. Seriously, take a look at this opinion. It's just frightening.
Thursday, January 15, 2009
[redacted text]
Posted by The Law Talking Guy at 12:13 PM
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2 comments:
One thing that leaps out even at one who is not fluent in legalese (such as myself) is the tone of the ruling: it is deeply contemptuous of the petitioner while being very respectful to the government.
The judge writes of one argument of the petitioner, "That dog will not hunt," and of another writes that the petitioner is, "firing blanks." Later, the judge dismisses one entire line of reasoning sarcastically by saying, "Notwithstanding the parade of horribles trotted out by the petitioner..."
Meanwhile the judge writes that, in the absence of evidence to the contrary, the government should be assumed to be acting in good faith! This sticks in my craw here, since of course in this case any evidence to the contrary would be classified and therefore presumably unavailable.
But I wonder if LTG can explain what the judge wrote (if anything can be gleaned from the remaining text)... It is hard for me to form an opinion based on this ruling.
It's not worth explaining. Its whole purpose is to say that the Bush administration did the right thing. It basically has no precedential value, thank heavens.
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