The invaluable Charlie Savage had the best story of the weekend. Which, of course, drew no notice because of Glitch-ghazi-gate. The administration apparently has decided to make a fight over another one of the policies that grew out of the Avignon Presidency's extended period of pissing down its own leg in abject terror.

The government's notice allows Mr. Muhtorov's lawyer to ask a court to suppress the evidence by arguing that it derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping. The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department. The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department's National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

There seems to have been an...ahem...breakdown in communications in the DOJ.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration's program of warrantless surveillance, the law authorized the government to wiretap Americans' e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is "targeted" at a foreigner abroad.

Uh-oh.

A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.

This is what happens when you overturn 700 years of western jurisprudence and hand the whole thing over the the likes of John Yoo. Sooner or later, somebody else has to square things up, and that person finds an entire rat's nest of what can only be called intellectual corruption.

The Justice Department change traces back to June, when The Times reported that prosecutors in Fort Lauderdale and Chicago had told plaintiffs they did not need to say whether evidence in their cases derived from warrantless wiretapping, in conflict with what the Justice Department had told the Supreme Court. After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division's practice of narrowly interpreting its need to notify defendants of evidence "derived from" warrantless wiretapping.

So the "National Security Division" of the DOJ doesn't feel obligated to tell the solicitor-general something that will keep him from going before the Supreme Court and arguing a position that does not happen actually to be true? This is the way this is supposed to work? What is it about Washington that makes anyone with "national security" in his title a complete fk-up? This has been true since the 1940's. The secrecy mania and the surveillance state are incompatible with democracy not only because they are contrary to its spirit, but also because they invariably screw up its mechanisms. Secrecy makes democracy not only a mockery, but incompetent.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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