Secrecy at Issue in Suits Opposing Domestic Spying

[cal04]

The Bush administration has employed extraordinary secrecy in defending the National Security Agency’s highly classified domestic surveillance program from civil lawsuits. Plaintiffs and judges’ clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies.

Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.

But now the procedures have started to meet resistance. At a private meeting with the lawyers in one of the cases this month, the judges who will hear the first appeal next week expressed uneasiness about the procedures, said a lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.

http://www.nytimes.com/2007/01/26/washington/26nsa.html?hp&ex=1169787600&en=b269fa6bc75f304b&ei=5094&partner=homepage

[struggle4progress]

1. Uh, the judiciary is supposed to be an INDEPENDENT branch of government

The executive ain't their boss ...

[lligrd]

2. You Have To Be Kidding Me

What happened to independent oversight? Why did the Judicial Branch ever allow this to happen? Aparently the last election restored some sorely missing courage to branches of our government where courage was sorely lacking.

[rodeodance]

4. I needed a refresher course in bizarre legal procedures.”

The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted him to conduct unusual research.

“Sometime during all of this,” Mr. Eisenberg said, “I went on Amazon and ordered a copy of Kafka’s ‘The Trial,’ because I needed a refresher course in bizarre legal procedures.”

A federal district judge in the case, Garr M. King, invoked another book after a government lawyer refused to disclose whether he had a certain security clearance, saying information about the clearance was itself classified.

“Frankly, your response,” Judge King said, “is kind of an Alice in Wonderland response.”

Questions about the secret filings may figure in the first appellate argument in the challenges, before the Sixth Circuit, in Cincinnati, on Wednesday. The three judges who will hear the appeal met with lawyers for the Justice Department and the American Civil Liberties Union on Jan. 8 in a judge’s chambers in Memphis.

[rodeodance]

3. "They have filed papers, in other words, with themselves."

In ordinary civil suits, the parties’ submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.

At the meeting this month, judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records.

In response, Joan B. Kennedy, a Justice Department official, submitted, in one of the department’s unclassified filings, a detailed seven-page sworn statement last Friday defending the practices.

“The documents reviewed by the court have not been altered and will not be altered,” Ms. Kennedy wrote, and they “will be preserved securely as part of the record of this case.”

[gratuitous]

5. "The documents . . . have not been altered"

Uh huh, and Ms. Kennedy we're supposed to, what, just take the Justice Department's word for it? Sorry, but after so many thousands of lives and hundreds of billions of dollars wasted, my reservoir of trust in this administration is totally dried up. If one of the enemies of the state currently running our government told me the sun was coming up in the east, I wouldn't believe it until I had looked out a window.

Are there any menschen left on the federal bench?