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Our Orwellian Executive Branch

From an EFF e-mail I just received:

Late last Friday night, the Government filed its reply brief, providing a last round of written briefing in advance of this week's hearing in our case against AT&T for collaborating with the Government's surveillance program. Finally the Administration has come out and flatly said what it has hinted at throughout its arguments: that the program is above the law.

The Government wrote that "the court -- even if it were to find unlawfulness upon in camera, ex parte review -- could not then proceed to adjudicate the very question of awarding damages because to do so would confirm Plaintiffs' allegations."

Essentially the Government is saying that, even if the Judiciary found the wholesale surveillance program was illegal after reviewing secret evidence in chambers, the Court nevertheless would be powerless to proceed. The Executive has asserted that the Program, which has been widely reported in every major news outlet, is still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it. In short, the Government asserts that AT&T and the Executive can break the laws crafted by Congress, and there is nothing the Judiciary can do about it.

Put another way, what the government is saying is,

Even if the court finds our surveillance program illegal, the court can't rule against it because to do so would be to acknowledge its existence.
Am I the only one besides the EFF who finds this profoundly troubling -- that the Executive branch has asserted that it can, on its own, engage in activities that are so secret that no court can be allowed to rule against them because to do so would confirm their existence?

And of course it almost goes without saying that this is one of the most Orwellian things I've heard in a long time. "You can't rule against this program that you know about because to rule against it would be to confirm that you know about it."

The EFF page on this case can be found here.


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