Jabberwocky, Reprise

For some reason, there seems to be a recurrent theme here: whenever the Bush Administration makes an argument for executive privilege (the unitary executive theory) and the need to keep documents classified, references to Lewis Carroll pop up. In this article we also get a nod to Kafka.

During a conference call today, an attorney who has a niche specialty in Open Records Requests and the Freedom of Information Act posited that democracy is more than just the right to vote, it's the right to challenge your government. There is a lot of truth to this statement because the American political and judicial system is predicated on a diffusion of power— one branch of government cannot usurp the powers delegated to another, and one party in a lawsuit cannot deny relevant information to the other party. Fundamental constitutional rights exist as a baseline that guarantees a minimum amount of liberty, and, consequently, political efficacy, for everyone.

This is only true in the abstract, however, because citizens, journalists, and even lawyers do no have unfettered access to government documents. In War on Terror cases, national security issues further cloud this neat theoretical picture (although something in the recent debates about balancing liberty and security strikes me as unoriginal). But even when compromises are made, certain forums—namely courts—are designed to balance and check competing interests under the auspices of nominally objective proceedings. There are provisions in FISA, for example, that allow courts to adjudicate national security-sensitive claims under secure procedural conditions. Seems fair and rationale, right?

What makes the recent executive privilege/wire tapping cases so maddening, as the Salon article illustrates, is that the Bush Administration seems to be mocking the judicial process by suppressing evidence that has already been released. Information that has been released but remains classified, the Administration’s argument goes, does not provide definitive proof of anything. So even though everyone knows, they don’t officially know, which is legally tantamount to not knowing. [insert Lewis Carroll reference].

And, after checking the headlines just now, it turns out that Congress gave the telecommunications companies immunity for participating in the Bush Administration’s secret wiretapping program. Dystopian reading list to come.