I’m no legal expert and have no inside information on the DOJ, which is why I’m the exact person to speculate on why the government didn’t present a better case in the recent wiretap decision. In between assaults on the judge’s integrity, brains, and skin color, many conservatives came up with several different arguments for why these wiretaps were legal. But as Glenn Greenwald pointed out, the government failed to make any of these arguments, and by doing so, forced the court to accept the ACLU’s undisputed arguments as fact. But why’d they do that? From the way Greenwald talks, this should have been a standard thing, and my very limited knowledge of courtroom proceedings (based almost entirely on People’s Court reruns) confirms that. So what was up with that?
Here’s my theory: Cheney and his guys didn’t want to provide any of these arguments, and he convinced the others of the same. Because they don’t think they have to prove anything. They think they already have these powers and don’t need a court to tell them they do. They just need to get the court to agree that the courtroom is no place to decide if the president’s super-secret stuff is ok. And when you’re one of Cheney’s guys, everything is super-secret.
Interestingly, I was already thinking about this while reading the conservatives’ outrage over the decision. Because I actually thought it was odd that the Bush Admin would be making such arguments; for the exact reason I just stated. And sure enough, it turns out that they weren’t making those arguments. Because this isn’t just about wiretaps or terrorism. This is the whole kit and caboodle. They want the power to do whatever they want, and they want the Judicial Branch to admit that they’ve got it. They want an admission that some secrets are too secret for the courtroom, and they’re willing to lose this case if that’s what it takes. And they’ll appeal this, and take it to the Supreme Court, and they’ll probably lose it there. But they had to take the chance.
Besides, I really don’t think they had a case otherwise. You can cite other arguments in support of the wiretaps, but the law is pretty clear and the Bush Admin was going to lose. So rather than go down quietly, they’re betting everything on the long shot. They believe that State Secrets is their ticket to freedom and don’t want to waste time with anything else. They’ve been thinking that since before Nixon told us that he wasn’t a crook, and now they’re ready to push forward with making this official. They were hoping that a court wouldn’t even force them to take it this far, but they’re willing to go all the way. Again, this isn’t about wiretaps. This is the fate of our country at stake, and my very limited understanding of the legal issues tell me that everything’s going to come out ok.