White House Plays By Its Own Rules Again (Cohen / WaPo)

... Over the past few years, whenever the White House has seen or sensed trouble looming for its most controversial and tenuous positions in the legal war on terrorism, it has suddenly changed course, altered the playing field, or unilaterally declared itself beyond the purview of the prevailing rule of law. No legal defeats for this administration, no explicit concession of limits on its authority, just a series of tactical or strategic retreats that allow it to show to the world a visage of supreme executive branch power-- while at the same time allowing it at some future date to advance the same losing arguments. And all of it is done in secret, under the cloak of national security, so as to hide not just true secrets but embarrassing facts and legal opinions.

Why this three-card-monte tactic? Because once the Supreme Court formally limits White House power on domestic surveillance, or once the Justices or Congress declare the President's "enemy combatant" designations unconstitutional as they apply to U.S. citizens (like Padilla and Hamdi), the executive branch will have a much harder time regaining those powers at a future date than they would without those explicit setbacks. I think of it this way: when the White House sees that it is losing the match, it simply walks off the field and starts a new game, somewhere else, with different rules.

With Hamdi, the feds suddenly released him from custody as an "enemy combatant" when the Supreme Court ruled in his favor. After years of calling him a terror suspect too dangerous to even talk with his own attorneys, Hamdi was suddenly free and back home. With Padilla, the feds voluntarily (and almost overnight) moved him out of "enemy combatant" status when it appeared clear that the Justices would force them to do so. Padilla now stands trial in civilian court on relatively minor charges in Florida. When the Supreme Court last year declared illegal the government's plans to try the Guantanamo Bay detainees, the White House simply bullied Congress into approving a new set of plans that still contain significant legal deficiencies.

And now this: the government now is asking the federal courts to throw out a challenge to the NSA spy program because, the feds say, the program now is being supervised by the Foreign Surveillance Intelligence Court and thus is no longer the program that the American Civil Liberties Union had challenged. Moreover, the White House now argues, it didn't voluntarily change the nature of the spy program by asking the FISA court to get involved and evaluate surveillance requests, the court unilaterally did so. This is legally significant because of a legal doctrine called "voluntary cessation" which allows plaintiffs to continue their court cases against the government if the government simply (and perhaps temporarily) halts the challenged action as a result of the lawsuit ...

http://blog.washingtonpost.com/benchconference/2007/01/the_never_mind_pattern.html

Of course, we don't really know how the whole change in the program came about because, as Attorney General Alberto Gonzales told legislators last week, he wasn't sure he could share those details with Congress (never mind the ACLU). Same as it ever was. Knowing that the program was constitutionally suspect, and knowing that a Democratic Congress was closing in, the feds ducked and now are covering. The courts should keep the NSA challenge alive and determine the constitionality of the program, then and now. We deserve more answers than we have so far received.

By Andrew Cohen | January 26, 2007; 10:30 AM ET http://blog.washingtonpost.com/benchconference/2007/01/the_never_mind_pattern.html

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