Either I missed my dear Liptak last week, or he was off for Labor Day. Either way, he’s back in action today, with a column about the FISA court , recent federal court decisions requiring it to be more open, and the Bush administration’s constant double speak — asking that the court remain confidential and under seal at some times, while itself revealing the court’s workings at others. And, per usual, Liptak’s not pulling any punches:
The Justice Department, judging from the tone of the brief it filed Aug. 31, was taken aback by that suggestion. The A.C.L.U., the government said, “requests that this court second-guess the executive branch’s classification decision.” And the executive branch had decided, the brief continued, that “no part of any documents can be released without harming national security.”
A little sheepishly, the brief conceded that there had been exceptions. In January, for instance, Attorney General Alberto R. Gonzales described aspects of orders the court had issued that month.
But those disclosures, the brief said, were “in the interest of informing the public debate.” Perhaps coincidentally, they were also made just before a federal appeals court in Cincinnati was to hear arguments on the legality of the surveillance program.
I’m wary of any court whose M.O. is confidential. Seems to me it should be the other way around — a court should be open unless specific reasons necessitate its closure. As the ACLU’s Melissa Goodman told Liptak, “Having secret bodies of law is antithetical to our constitutional democracy.”
I know, I know, national security is important. We all know that. But the Bush (et al) tactics on the FISA court seem to mirror what they’ve done in other areas related to the “war on (politically expedient so-called) terror”: Scare the bejeezus out of people. Tell them that some drastic action must be taken for the people’s safety. Mislead the people about the breadth of that action. Win elections. Maybe with the FISA court asserting a little independence and journalists remembering how to do their jobs, this tactic will start to backfire. Just maybe.