August 17, 2007
Slate's Dahlia Lithwick
on the surreal absurdity of the government's arguments yesterday in the NSA spying appeals:
Early in the argument in the first case, Hepting v. AT&T, Judge McKeown asked Deputy Solicitor General Gregory G. Garre whether President Bush still stood behind his statement that the government does no domestic wiretapping without first obtaining a court warrant. Garre said yes. McKeown wondered aloud how it can possibly be "a state secret" that that the government is not intercepting millions of customers' communications illegally. How can the absence of an illegal program be a secret?
In a rhetorical flourish that would impress even the March Hare, Garre responded that if the appeals court allowed that issue to proceed to trial, the plaintiffs would be "forcing the government to prove a negative ... that takes us precisely into the heartland of state secrets." Follow along, little children: If the government had to prove that something that doesn't happen, doesn't happen, it would have to divulge everything that does happen. Um, how's that?