One of the things that Glenn Greenwald and a few other commentators have noted over the last several years is that the US move towards a police state is not solely the fault of the executive branch. While there is little question that Presidents Bush (the younger) and Obama have invented torturous ways to abrogate many constitutional safeguards, the main reason they have been able to get away with these power grabs is due to the acquiescence of the federal judiciary.
In case after case, all government lawyers need say is "terrorism" or "national security" and federal judges allow them to ignore almost ANY constitutional mandate. It has gotten so bad that judges often halt law suits in their infancy, even when their written decisions indicate they don't want to. In many ways, the federal judiciary has become subservient to presidents and their lackeys.
This development is very dangerous for a democracy. When our nation's constitution was established, it created a checks-and-balances system. The idea was that no branch of government was more powerful than the other two. Together, they would keep in check each other's power grabs. But this system becomes dysfunctional if one or more branches refuse to exercise the power granted to it.
In a sign that the federal judiciary may have decided to fulfill its role again, two recent cases dealt a blow to the growing construction of the US police state. In one case,
a federal appeals court ruled on Friday that the CIA must give a fuller response to a lawsuit seeking the spy agency's records on drone attacks.
The CIA's claim that it could neither confirm nor deny whether it has any drone records was inadequate, because the government, including Barack Obama himself, has clearly acknowledged a drone program, the court said.
The ruling was unanimous from a three-judge panel of the court of appeals for the District of Columbia circuit.
In the other case,
The Californian telecoms company thought to be behind a stunning court victory that has blown a hole in the FBI's highly secretive system for collecting US citizens' private data has hailed the "significant" legal breakthrough.
Credo, based in San Francisco, spoke out after a federal judge ordered the US government to stop issuing what are called "national security letters" – demands for data that contain in-built gagging clauses that prevent the recipients disclosing even the existence of the orders or their own identity.
While these two decisions are significant, we shouldn't herald either as a victory just yet. The Obama administration most likely will appeal both decisions and chances are good that they will find sympathetic judges to overturn one or both. Still, it's just good to see some federal judges exhibiting something of a backbone.