Balkinization  

Tuesday, December 19, 2006

Government backs away from unconstitutional use of subpoena power

JB

Yesterday the government backed away from its attempt to use the subpoena power as a prior restraint to force the ACLU to hand over all copies of a secret document. Not only that, the government declassified the document itself. Here is the judge's order noting the government's change of mind, and here (gasp!) is the secret document whose disclosure the government insisted was so important that it had to abuse the investigative powers of the grand jury.

As you will see, the document is nothing other than an memo about when the government would permit photographs of prisoners of war and detainees in the Iraqi Theater of Operations. Not only is this document not crucial to national security, it probably never should have been classified at all.

And yet the government insisted that it didn't snap up every copy of this memo, something terrible would happen to the United States.

This episode aptly demonstrates why claims that we must surrender our freedoms following 9/11 and the War on Terror must be taken with an enormous grain of salt. It's very easy for the government to make these claims, and, as this case shows, it is likely to make them when they are completely bogus. The reasons have to do less with the venality of specific individuals than with the nature of bureacracies, which are naturally allergic to oversight, and which usually seek to maxmize their authority and their lack of accountability.

Once we let our government officials assert emergency as the justification for limiting our rights, they will become addicted to the gesture, and will use the language of emergency and national security to justify more and more things. First they will use the idea to cover up potential political embarassments. Then, as this case demonstrates, they will start to use the gesture reflexively, out of habit, and for no good reason. What the government tired to do in this case-- perform an end run around the Pentagon Papers case for the sake of an unimportant document like this one-- should outrage every American who believes in freedom of speech.

The only way to keep government officials from this particular addiction is to call them out when they try to slip into bad old habits. Hence the old saying that eternal vigillance is the price of liberty.


Comments:

More troublesome is the administration's tactic to pull out just before a judge decides an issue thus rendering the case moot. In this way they can still claim there extended powers some other day. This is not the first example: take Padilla (status pulled, indictment made) and Hamdi (suddenly set free).

It would be nice to have a list of instance where the administration claimed executive power but rendered the case moot to escape judicial oversight.
 

I'm eagerly awaiting Bart's reply.

Will he concede that this was an abuse of power and yet somehow insist that we should continue to trust this administration in other areas?

Will he find a way to defend it?

Will he resort to ad hominems?
 

You are too generous to the Bush administration when you write, "The reasons have to do less with the venality of specific individuals than with the nature of bureacracies." No prior administration has pulled this stunt, just as no prior administration has tortured hundreds of people without filing charges against them. It's about time that we held specific individuals responsible for their venality.
 

@henry: The problem will be that there are too many enablers to adiudicate. Let's borrow an idea from Bart and provide them with some summary executions ;)
 

Professor Balkin: ...as this case shows, [the adminstration] is likely to make them when they are completely bogus.

Technically this example cannot address the likelihood that any such claim is bogus. But it suffices that this claim was bogus. This administration is guilty, caught red-handed. The secrecy in which tyranny famously breeds has been the order of the day since 43 first took office, starting with the baseless classifying of large amounts of his father's documents in the early hours of his term, as I recall. This adminstration, run by the son of an ex-CIA head has always displayed a contempt for oversight and a love of secrecy. Nine-one-one was only an excuse, opportunistically siezed, to further that love.

Professor Balkin: The only way to keep government officials from this particular addiction is to call them out when they try to slip into bad old habits.

Such as when the intelligence community rams though legislation like H.R.3162, the so-called "patriot" act, with no other goal than undoing protections put in place in the wake of Cointelpro. We've seen what an uphill battle that is. The liberty snatchers have the loudest voices of the media on their side, the Limbaughs and Oreilly's and Coulters. And vituperative shouting is a lot sexier than cold clear analysis of how today's expedient mesure in the "war" on terror is the foundation of tomorrow's National Surveillance State. If we can't stop that state from coming we can at least fight to contain it. If we can't contain it we can lay down the seeds for future generations to rekindle liberty after its inevitable rot and fall.
 

More on the adminstration's addiction to secrecy, courtesy of TPM Muckraker. Just how many different ways has the Bush Administration tried to hide once-public information sources from the public record? Help us count the ways.
 

The document at issue appears to be legal advice from the JAG attorneys to their client, the military, and is therefore subject to classification like any other attorney client communication.

This begs the question as to why the ACLU did not return the privileged attorney client communication which was illegally provided to them back to JAG?

I believe an attorney who has been given another attorney's work product without authorization by a third party generally has an ethical duty to return that product to the originating attorney as soon as he or she realizes what it is.

As to prosecuting ACLU for copying classified materials, the government might have a technical case, but wisely decided to back down considering how low the stakes were.
 

"Bart" DePalma is confoozed once again:

The document at issue appears to be legal advice from the JAG attorneys to their client, the military, and is therefore subject eers,
to classification like any other attorney client communication.


Huh? HUH?!?!? WTF does ACP have to do with classification? As for ACP, you might have a right not to give up such info (but look at l'affaire Clinton for what RW foamers used to think about ACP by gummint lawyers, but IOKIYAR), but if you mail some supposedly privileged stuff to someone, you're a schmuck, and they're the passive recipient. If you give stuff away, you can hardly claim ACP in hindsight.

This begs the question as to why the ACLU did not return the privileged attorney client communication which was illegally provided to them back to JAG?

Because they didn't want to? How's abot dem apples, eh, "Bart"? You gonna make 'em? Or you just gonna hold your breath and cry?

I believe an attorney who has been given another attorney's work product without authorization by a third party generally has an ethical duty to return that product to the originating attorney as soon as he or she realizes what it is.

Why? It wasn't labelled ACP. It was labeled "secret". But FWIW, the ACLU didn't go divulging it to the world; they sat on it while the legal issues were being hashed out. You have a problem with that?

As to prosecuting ACLU for copying classified materials, the government might have a technical case, but wisely decided to back down considering how low the stakes were.

"Nya, nya, I wuz gonna fight ya, but you're too small....." >*as "Bart" slinks off home to mommy*>

Cheers,
 

"Nya, nya, I wuz gonna fight ya, but you're too small....." >*as "Bart" slinks off home to mommy*>

That's not really helpful.
 

bitswapper:

Just ignore arne, I do.
 

Ignoring the ad hominen or ridiculing portions of a post does not entitle you to ignore its substantive points.
 

Arne, I was (pleasantly) surprised to see you'd followed HWSNBN over here to continue the spankings.
 

bitswapper:

[Arne, in re "Bart"'s 'debating' tactics']: "Nya, nya, I wuz gonna fight ya, but you're too small....." <*as "Bart" slinks off home to mommy*>

That's not really helpful.


Same could be said for "Bart"'s dishonesty here and refusal to actually engage in any kind of back-and-forth dialogue. That's his MO: Spew a bunch of nonsense and crapola, ignore any refutations or substantive counters to such, and then go on and spew the same thing again a couple posts down the line. Witness, e.g. his repeated claims that it was SOP to summarily execute enemy soldiers out of uniform. The same with his claim about a "majority" of the U.S. Supremem Court "holding" that teh N.Y. Times could be prosecuted post-publication. SImple nonsense. Refuted. Refutations ignored. Same crapola spewed agan and again.

Now, perhaps you can elucidate for me what is the "proper" way to respond to such tactics as "Bart'" employs.... What tactics are you using, and have they managed to correct his behaviour? I don't expect to correct his behaviour (I gave up on that many many months ago), but I can ridicule his perversion of discourse so that his efflux is not mistaken for any drops of the nectar of knowledge by the ininitiated.

Cheers,
 

Henry said...

Ignoring the ad hominen or ridiculing portions of a post does not entitle you to ignore its substantive points.

I wasted hours responding to arne over at Glenn Greenwald's blog. When he was not engaged in his usual juvenile ad hominem attacks, arne regularly lied about what he and I had posted. I simply started ignoring him. Now he follows me around the web like an unrequited cyber stalker. I apologize to Professor Balkin for having him follow me here.
 

"Bart" DePalma says:

I wasted hours responding to arne over at Glenn Greenwald's blog. When he was not engaged in his usual juvenile ad hominem attacks, arne regularly lied about what he and I had posted....

"Bart" lies once again. I have never lied about what "Bart" has said. I did whack his keister enough times that he got too embarrassed to respond.

... I simply started ignoring him. Now he follows me around the web like an unrequited cyber stalker. I apologize to Professor Balkin for having him follow me here.

"Bart" seems to think that he should be immune from criticism (and ridicule) for his whoppers, disingenuous arguments, mis-statements of facts, cases and law, and other dishonest rhetoric. He may choose not to respond, but that hardly constitutes a refutation of the points I make (and amidst the justly deserved ridicule and scorn, there is plenty of that in what I write as well). If he has a counter to my demonstration that his "meme" (about how lucky 'illegal enemy combatants' are that they are just tortured rather than summarily shot) is bulltwaddley using his own cite to demonstrate such), he should come out with it. Why he has insisted once again that some "majority" in N.Y. Times v. U.S. "held" that the Times could be prosecuted post-conviction (after at least acknowledging that it was dicta once previously when corrected) is beyond me. I've shown this to be untruthful twice so far, yet it seems that "Bart" will take a hiatus, and then go spout the same nonsense later in another forum once again. It is this type of behaviour on "Bart"'s part that illustrates his dishonesty, and why he deserves nothing but ridicule and scorn.

Cheers,
 

I said:

"...the Times could be prosecuted post-conviction..."

I meant "post-publication". Sorry for the error.

Cheers,
 

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