CIVIL is as civil does

By Carol Gee

Please be civil -- Civil rights, civil liberties, civil society, civil vs. criminal, civil service, civil disobedience, all of these phrases have something to do with behaving oneself. For the past few days I have been reading a great deal of Internet material on "civil" issues, including the Hamdan trial at Guantanamo. It has been a fascinating exercise in maintaining my equilibrium despite what I have learned that is further evidence of the Bush administration's lack of ethics and frontal assault on the U.S. Constitution.

Google, move over -- In the process a happy accident happened. I discovered a very interesting new search engine named "Cuil," pronounced "cool." It returned very useful results in a brand new form. I used the search terms, "Domestic Spying," "search laptops" and got 1,538,151 results for the term "DNI Mike McConnell." One day I am sure my concentration on writing about the DNI will put me under suspicion in the NSA, but the number of "hits" make it clear that I am not the only one fascinated with the man.

In addition to Civil, "C" also stands for Contempt. This is the headline that reports an amazing administration defiance of recent court rulings about executive privilege vs. congressional oversight powers. "Defying Subpoena, DoD Orders Sexual Assault Program Chief Not To Testify Before Congress" by Andrew Tilghman - August 1, 2008 at TPM Muckraker. To quote from the post:

The Pentagon defied a Congressional subpoena yesterday by refusing to let the head of its sexual assault program testify at an oversight hearing about sexual assault in the military.

The House panel had issued a subpoena for Dr. Kaye Whitley, the director of the Defense Department's Sexual Assault Prevention and Response Office.

But Pentagon officials ordered her not to testify and instead sent her supervisor, Michael Dominguez, a principal deputy undersecretary for defense, in her place.

American Civil Liberties Union -- Blog of Rights. It is clear to me that the new FISA law will be challenged over and over again in court, perhaps for years. It is far too crucial to let it stand. A related headline says that the "Administration wants to block ACLU from wiretapping law litigation" by Andrew Tilghman (7/30/08) from TPM Muckraker. To quote:

The Department of Justice filed court papers yesterday seeking to block the ACLU -- and any other third party -- from submitting briefs to the Foreign Intelligence Surveillance Court, the classified forums that will be primarily responsible for translating the federal law signed last month into practice.

. . . Peter Swire, a law professor at Ohio State University and senior fellow at the Center for American Progress, supports the ACLU's position. He wrote a paper in 2004 calling for greater participation in the FISA court.

"The DOJ is taking an expansive view of executive power and narrow view of judicial power, Swire told TPMmuckraker in an interview today. "Under the government's view, the judges seem required to uphold an unconstitutional system because the judges are forbidden from getting briefing from anyone other than the executive branch."

While there is limited precedent for third-party involvement in the typically classified proceedings under the 1978 FISA law, the new technologies that prompted lawmakers to update the law law may also warrant new procedures, Swire said.

"The 1978 version of FISA targeted one individual at a time or sometime one terrorist organization. The new approach sweeps far more broadly and it looks more like an administrative system than a traditional judicial wiretap order."

Closed FISA Court? Ryan Singel at Wired: Threat Level, has another take on the same story. "Only government can argue in secret spy court, Feds say". To quote:

On July 10, the ACLU asked the secret court to let it participate when the Court was considering questions about the "scope, meaning and constitutionality" of this blanket surveillance program. The ACLU wanted to make the government file public versions of its legal briefs, allow the ACLU to file a brief and argue orally, and that the court issue public opinions (with classified info redacted). The ACLU made the request (.pdf) the same day it challenged the constitutionality of the newly passed FISA Amendments Act in federal district court.

The Bush Administration argues that the court's review of spying orders is far too secret to allow any outside party.

"The benefits of open proceedings are greatly outweighed by the potential harm that public access would cause to the national security and integrity of the FISC process," the brief (.pdf) argued. "Allowing third parties to use this Court as a general forum to present facial challenges to the Government's surveillance activities could cause a flood of litigation that would distract this Court from its important national security functions."

S/SW References -- Recently I have blogged about several of the most important civil liberties issues in the news. Links follow:

• "Why were they surprised?" -- Republicans walk out on DNI briefing
• "The kind of government we want" -- includes a segment on the recent Bush order for a national intelligence overhaul
• "Be careful what you ask for" -- The role of psychologists in the government's torture program
• "I pledge allegiance" -- Daniel Ellsberg interview on the Fourth Amendment
• "What about The Mikes?" -- Regarding news about DNI Mike McConnell and AG Mike Mukasey
• "FISA bill signing post mortem" -- a rant about the consequences of Congress caving in on FISA
• "Examining an obsession with civil liberties" -- mine!
  

(Cross-posted at South by Southwest.)