My comment was admittedly hyperbolic, so I'll provide an expanded reply. Yes, the government doesn't have the ability to deem what is constitutional in every situation, but as long as it's under the umbrella of national security, the safeguards of judicial checks on power are crippled.
State secrets have been used as a defense in courts more times in the last decade than the 50 years before 2001.
There are countless situations where the Bush and Obama administration have acted without traditional judicial oversight with seemingly legal proceedings justified by national security (see CIA secret prison network).
The supreme court has even ruled so on many occasions against the government. But those cases are quite rare compared to the frequency of which the government acts under the safeguard of secrecy. Very few people (probably >99.9%) ever challenge the governments claim to secrecy (for example NSLs). Even mega-corporations are fearful, let alone citizens. So the question of the efficacy of judicial oversight regarding the constitutional limitations imposed on the government is a very challenging one to even measure.
> The court, encouraged by the government, has thus created at Catch -22: only the government knows who it is wiretapping without a warrant; so long as it claims that information is a “state secret”, no one will have standing to sue and the government can never be held accountable for breaking the law.
The concept of state secrecy is quite brilliant in it's ability to limit legal challenge. Therefore leading to the states ability to say any action conducted in secret is "constitutional", because it can't be proven otherwise in court (unless a radical judge ignores the state secret clause which has happened only in extremely rare situations).
State secrets have been used as a defense in courts more times in the last decade than the 50 years before 2001.
There are countless situations where the Bush and Obama administration have acted without traditional judicial oversight with seemingly legal proceedings justified by national security (see CIA secret prison network).
The supreme court has even ruled so on many occasions against the government. But those cases are quite rare compared to the frequency of which the government acts under the safeguard of secrecy. Very few people (probably >99.9%) ever challenge the governments claim to secrecy (for example NSLs). Even mega-corporations are fearful, let alone citizens. So the question of the efficacy of judicial oversight regarding the constitutional limitations imposed on the government is a very challenging one to even measure.
> The court, encouraged by the government, has thus created at Catch -22: only the government knows who it is wiretapping without a warrant; so long as it claims that information is a “state secret”, no one will have standing to sue and the government can never be held accountable for breaking the law.
http://washingtonindependent.com/31800/does-national-securit...
The concept of state secrecy is quite brilliant in it's ability to limit legal challenge. Therefore leading to the states ability to say any action conducted in secret is "constitutional", because it can't be proven otherwise in court (unless a radical judge ignores the state secret clause which has happened only in extremely rare situations).