"This morning, a federal judge in Michigan is hearing a potentially significant Oral Argument on the legality and constitutionality of the administration's warrantless eavesdropping program....
The judge's refusal to adhere to that request seems to signal that the judge does not view the mere recitation of the words "state secrets" as a signal that her power to rule has been magically stripped away without any analysis as to the validity of that claim. It may be a small rumbling indicating that the judiciary -- like a handful of members of Congress -- are beginning to find the courage to assert their institutional role in our government.
Here, the very invocation of the "state secrets" doctrine by the administration is simply ludicrous. The President already acknowledged the existence and substance of the program, and the lawsuit's theory is that this knowledge, by itself, chills plaintiffs' free speech and privacy rights. No further disclosures are needed to adjudicate the legality of the government's conduct. But no matter. Judges almost always defer to the "state secrets" claim. But perhaps some courts will start to recognize that the doctrine here -- like so much else in our political life - is being radically exploited by an administration which virtually never cares about national security but acts to protect only its political interests"
"But, as for the courts, increasingly the White House—with the full support of the president's faithful vassal Attorney General Alberto Gonzales—has been compelling judges to dismiss cases that could expose the administration's misrule of law. By invoking the "state secrets" privilege, the administration ensures that all documents and reports central to the case at hand are excluded—and the case cannot proceed.
For one of a growing number of examples of this gagging of the courts: Late at night on May 26, the alleged Justice Department invoked "state secrets" to shut down the Center for Constitutional Rights case CCR v. Bush, challenging the omnivorous and warrantless domestic surveillance by the NSA.
But that is precisely the situation we're in—not only because the Republican-controlled Congress indeed lets the president do whatever he wants. Where is the resistance of the so-called opposition party? Why haven't Nancy Pelosi, Harry Reid, and Howard Dean publicly and insistently supported Ed Markey not only in his probe of the NSA and its protector in the Oval Office, but also in his repeated calls for investigations of the CIA's "rendition," secret prisons, and standard repertory of torture?"