First they’ll act and then you learn about it. And then they’ll act again.

Seldom is the Executive Order even mentioned, but I think that it clearly purports to do the Judiciary’s job – interpret what is or is not illegal – in connection with classification.

So I think that it devolves into a very simple fire, but one where no one is dragging DOJ’s feet. First and foremost they need to be on the record, in representations to the tribunal, that illegal activities cannot be classified. Then they need to be on the record in answering how it is determined, once there is a good faith basis for challenging the legality of a gov program, the issue of legality is resolved. Who interprets the law in an adversarial setting? One of the ”sides” to the dispute – - or the court.

And the bright shiney’s clouding the issue of whether or not gov used a technoligical approach that it does not want to disclose, as a ”state secret”, when it violated the law and the Constitution – is something that can be addressed pretty easily IMO. It’s like saying that Cheney shot someone in the face using a top secret laser gun instead of a shotgun. You can redact and seal the technical information about the nature of the gun without having to pretend the shooting didn’t take place. A court might have to hear sealed testimony that would stay sealed on the capacities and technology of the weapon to get at issues of, for example, Cheney’s intent (maybe the laser gun makes people’s head look like a big caged quail, for example)

Still, that’s all bright shineys and completely removed from – - details of the technology used to accomplish the actions aside, where the actions illegal.

How often does anyone explain the exact details of manufacturing and physic re: how a gun works and does a jury need to understand that to find someone guilty?

FWIW – I’ve got to head out the door but, OT a bit, here’s an op ed that goes to the ”secret” OLC opinions.

http://www.nytimes.com/2007/11…..ref=slogin

Based on what little I know, opinions of counsel had to be made public and with privilege removed in order for anyone to be able to even try to claim reliance on those opinions as a part of a good faith defense. That’s if good faith can even be a defense in the facts and circumstances.

Thanks for pointing that out; I was struck by that too. It rather lowers the bar a bit, doesn’t it, that now it doesn’t even have to be secret, just damaging to our foreign relations. I suspect they don’t want much of the info Nacchio has already revealed out bc (they claim) they don’t want Europe to realize we’ve got wide networks of fiber that they pretend not to know about on their land.

Senator Feingold asked Alberto Gonzales basically whether these idiotic constitutional theories meant the president could ignore the law, and Gonzales told him he was asking a hypothetical question. Feingold was asking in particular about electronic eavesdropping, and chose to take the answer to mean we weren’t doing any electronic eavesdropping of the kind he was asking about, even though he asked the question precisely because people were beginning to realize that we were doing exactly that.

Gonzales, of course, meant that the question was hypothetical because he was being asked if the president could break the law, and it is his belief that that is definitionally impossible.

Feingold chose not to hear that. Probably because hearing it meant standing alone, again, waiting for other Senators to acknowledge hearing it. Which they won’t.

Mukasey gave the same answer to pretty much the same question. And who heard that? Nobody. And now he’s the Attorney General.

Asking these questions gets embarrassing after a while.

Here’s the nuts and bolts on that though.

When last I looked, the telecoms themselves had not filed one objection to the invocation of state secrets by gov. So obviously, they aren’t clamoring for the courts to strip away that privilege layer.

Secondly, no one can determine if the privilege has been invoked in violation of the existing Executive Order – much less the existing case law – unless and until a court reviews the activity to see if it s illegal. That’s the one question I haven’t heard mentioned from the bench and a position I haven’t heard pushed hard enough from the plaintiffs.

Does Gov agree that the Executive Branch cannot violate the law and/or Constitution and evade judicial review of their illegal activities by invoking state secrets?

No one is pushing that to the point it needs imo and I’m not quite sure why.

The Dems can’t jump the shark and impeach Bush or Cheney because in whipping the Blue Dogs it’s bound to get out what they’re going to do. The administration can’t unleash the DOJ on the Dems because of the politicization scandal. They’re in a precarious embrace and have only little skirmishes here and there, with recess appointments and funding pissing contests, rather than an all-out war where everybody would lose.

The really intriguing thing to me is the spate of resignations, Card-Gonzales-Rove, and others, that simply must have something to do with all this. Is an IG somewhere too close to the truth?