Nice republic… if you can keep it

Well, our friends at the Center for Constitutional Rights have brought suit in federal court in San Francisco to set aside the Protect America Act of 2007, a/k/a the bipartisan attempt to abrogate the Fourth Amendment by repealing FISA. Our interview with CCR’s President Michael Ratner may be found here, and the interviews of numerous attorneys working with CCR in representing Guantanamo detainees may be found on the side-bar (or check the end of this post, our recent interview with Mike Otterman).
The CCR attorneys, of course, claim that their conversations were likely monitored, including presumably telephone calls overseas which would have constituted attorney work product as they were in the context of providing legal representation… it is unlikely that the CCR attorneys spoke by telephone to actual GTMO detainees while being detained, because, well, it strikes me as unlikely that the government would allow the detainees access to a telephone. CCR, of course, has other clients who aren’t detained at Guantanamo, who they doubtless do talk to on the telephone. The attorney work product angle for GTMO detainees… and the attorney client privilege for everyone else… is certainly there.
The government, unsurprisingly, will rely on the “state secret” doctrine to try to get a repeat of what it successfully did earlier this year in the Sixth Circuit Court of Appeals in Cincinnati, to wit, argue that because the plaintiffs don’t know for sure they were eavesdropped upon because the government won’t tell them, that ergo, even if they were eavesdropped upon, they lose, so nya nya nya nya nya.
Given the people I have called, e-mailed and met in the course of bringing you the unvarnished truth on this blog, including some of the plaintiffs and attorneys involved in CCR’s suit, let me just say that I take more than a rooting interest in the outcome; it’s certainly possible that some, most or perhaps all of my own conversations were and are still being monitored. Who knows? (I do try to keep things lighthearted, and let my interview subjects know that I use no recording devices save a pen and paper, and the NSA never provides me with transcripts.) I know, I know… I have nothing to worry about if I’m not plotting with al Qaeda terrorists. Me and all of the other millions of people who may be being monitored and invaded without probable cause in derogation of the Fourth Amendment. We all have nothing to worry about.
We already live in a country where both parties really couldn’t give two s**ts about any of our privacy or Constitutional rights (save gun ownership), or for that matter, about much else besides money (Democrats maintaining their political base by making sure that social security continues to be available to the middle and upper middle classes, and Republicans maintaining their political base by making sure that kickbacks are available to government contractors and that certain social programs are administered in a way that can be portrayed as racist). Let’s face it… Jim Henley nails it in one by pointing out that the Democrats invented the national security state… our privacy (or Constitutional rights at all) are simply not worthy of either party’s discipline; it’s about the economy money and power, stupid.
The courts used to be about the Constitution (well, that was what the Civics course said, anyway). It seems that an awful lot of judges are also now about the money and power, stupid. I’ve said before that the future of this republic rests heavily on the vagaries and whims of Justice Anthony Kennedy… and it may well again in this case, when and if it reaches the Supreme Court. If we hang tough, and demand to be treated as a strong and free people (as Jim Henley would say, a pack and not a herd), then I think we can preserve the precious freedoms our Founding Fathers aspired to give us. Or we can continue to wallow in the fear that the President and his bipartisan allies in Congress want us to feel.
I’ve quoted Ben Franklin and Will Rogers; now I’ll quote St. Thomas More, as theorized in Robert Bolt’s “A Man for All Seasons” (speaking to Roper):

More: Cut a road through the law to get after the Devil?
Roper: Yes. I’d cut down every law in England to do that.
More: And when the last law was down, and the Devil turned on you…
…where would you hide, Roper, the laws all being flat? This country is planted with laws from coast to coast… Man’s laws, not God’s, and if you cut them down… and you’re just the man to do it. you really think you could stand upright in the wind that would blow then?
Yes. I give the Devil benefit of law for my own safety’s sake.