ACLU challenges government's no-fly list -- 10 years late

News that the American Civil Liberties Union had filed suit to challenge the federal government's "no-fly list" should be regarded as both good news and bad news for U.S. residents concerned about Washington's growing authority over their lives. That it has taken so many years to assemble a credible constitutional challenge to what assuredly was an immense power grab by federal authorities speaks quite loudly about the passivity of most Americans and their lack of involvement in governing their country. To be sure, the circumstances that led the feds to closely monitor airplane travel after the Sept. 11 attacks were unprecedented and outrageous. But the emergency that arguably justified the imposition of such a draconian regulatory regime -- barring U.S. citizens from traveling on airplanes based on possibly incorrect but still secret information -- has surely passed. And that it took a citizens group to mount that challenge, and not any of the array of federal agencies whose taxpayer-funded mission is to defend the U.S. Constitution, is nothing short of disgraceful. Even the lawsuit filed Wednesday tacitly accepts the legality of the restrictions, since it argues on behalf of 10 residents that the rules are unconstitutional because they do not permit people on the list to challenge their inclusion, according to the Reuters international news service. An ACLU lawyer told Reuters that the lawsuit was the first filed on behalf of legal U.S. residents challenging the no-fly list system. A lawsuit by a non-citizen seeking to get removed from the list is still pending, Reuters said. "The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process," the suit filed Wednesday says. The lawsuit was filed in U.S. District Court in Portland, Ore., and names Attorney General Eric Holder, FBI Director Robert Mueller and Timothy Healy, director of the FBI's Terrorist Screening Center, Reuters said.

High court gets it wrong in church-state case

There was a time in this country when most people understood what the U.S. Constitution said, even on controversial and evolving legal situations like the separation of church and state. States and municipalities did whatever they wanted, pretty much, whether constitutional or not, like they still do sometimes, but the U.S. Supreme Court always had the last and most reasonable word. Of course it wasn't always so -- there have, as we all know, been some amazing doozies over the years. But that was then, before the likes of Byron White and William Rehnquist were on the court. Now, with Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Clarence Thomas in four of the panel's nine seats, the high court can no longer be relied on for sound reasoning in the face of the kind of blatant partisanship that comes from highly paid advocates. Each yearly term of the current panel reveals further examples of this, from the utterly regrettable Bush v. Gore decision in 2000 (the constitutional way to determine who won a presidential election is to stop counting the votes!) to the shockingly unrealistic Citizens United decision (Congress is constitutionally barred from placing reasonable limits on campaign contributions!) earlier this year. So, it came as little more than rueful surprise to see the court rule 5-4 Wednesday that a Christian religious cross erected on national parkland as a war memorial in California's Mojave Desert did not violate the First Amendment, as the New York Times reported. It wasn't just that the cross itself was on public land, or that the government had tried to relieve itself of responsibility by selling the tiny bit of land under the Sunrise Rock cross to a veterans' group, but that U.S. officials refused to allow representatives of other religions to place their own memorials there! The First Amendment's prohibition on laws "respecting an establishment of religion" has come to bar the United States from favoring any religions over others. It is a tribute to the soundness of this reasoning that such disputes rarely reach the high court, even with the loud and often overbearing religious leaders that populate the country. Yet favoring is clearly what the government did at Sunrise Rock. "The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," Justice Anthony Kennedy wrote for the court majority. "Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten." But in dissent, Justice John Paul Stevens, the only war veteran on the court, said "I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message." The case is entitled Salazar v. Buono, No. 08-472.

What did we expect from the Bush administration?

Saturday's revelation that the CIA deliberately withheld information about a secret counterterrorism program from the members of Congress who were supposed to oversee it certainly helps explain, at least in part, the initial reluctance of the new Obama administration to investigate the previous government's illegal activities. This is going to be big -- the Bush administration's excesses violated a lot of laws and principles, and put the future of the country at risk -- and a lot of former officials probably are going to end up in prison or have to fight furiously to stay out. No doubt, President Barack Obama did not want to be distracted from his sweeping domestic agenda at the start of his term. But Congress should have no such reluctance because its authority was compromised -- unless, of course, it is that such an investigation will reveal the failure of elected representatives to properly live up to their oversight responsibilities. Hopefully, the new Democratic Party majority in both houses of Congress will recognize the damage done to the government traditions under the U.S. Constitution and work to see that it never happens again. Assuming reports are true, and there are no indications so far that they are not, new CIA director Leon Panetta told the House and Senate intelligence committees that former Vice President Dick Cheney ordered the agency not to reveal to Congress the existence of a still-secret counterterrorism program, according to the New York Times. Panetta said he ended the program when he took office. The issue of whether the Bush administration was candid with Congress has been roiling Capitol Hill since May, when Speaker of the House Nancy Pelosi (D-San Francisco) said she had not been told that the agency had waterboarded a terror suspect in 2002. The National Security Act of 1947 requires the president to ensure that the Congress intelligence committees are "kept fully and currently informed of the intelligence activities of the United States," the Times said. A CIA spokesman declined to comment on Cheney's purported role in the concealment from Congress. "It's not agency practice to discuss what may or not have been said in a classified briefing," the spokesman, Paul Gimigliano, told the Times. “When a C.I.A. unit brought this matter to Director Panetta’s attention, it was with the recommendation that it be shared appropriately with Congress. That was also his view, and he took swift, decisive action to put it into effect.” Intelligence and Congressional officials told the Times that the unidentified program did not involve interrogation or domestic intelligence activities, but was started following Sept. 11, 2001, attacks on New York and Washington.