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Published: Saturday, 8/18/2007

When secrets are secret

A COURT challenge to the Bush Administration's warrantless wiretapping program has run squarely into a comic-book caricature of a monolithic government slapping aside all challenges to its power by invoking the Kafkaesque distortion of the legal system inherent in the concept of "state secrets."

This Bizarro World tableau, playing out for real in a federal appeals court in San Francisco, is far more menacing than it is entertaining, however. Indeed, it threatens the very foundation of the American system of justice.

When the defendants in a criminal action cannot see the evidence against them on the grounds that the evidence itself is a secret, the Constitution is being subverted.

And that goes double for the administration's increasingly frequent - and dubious - claims of "national security" involving electronic eavesdropping.

The al-Haramain Islamic Foundation filed a lawsuit claiming that the now-defunct Oregon charity was illegally spied on by the federal government. The basis for the suit was a document a government official inadvertently sent to the foundation showing that illegal wiretapping took place.

Government lawyers, as is the custom these days in cases involving warrantless surveillance, contend that the lawsuit should be dismissed because pursuing it could reveal "state secrets."

This twisted argument led to legal contortions that have no place in a free society.

Lawyer Jon Eisenberg was required to write his legal brief for the foundation under federal guard in a windowless federal office, forced to rely solely on his memory without books or notes. This was in response to the government's argument - which he wasn't allowed to see.

Government motions in preparation for the court appearance were filed under seal or were heavily redacted, as were some of Mr. Eisenberg's briefs as well. While federal lawyers were able to read the blacked-out bits from Mr. Eisenberg's filings, he was not permitted to read theirs.

When lawyers for both sides presented their arguments before three judges of the 9th U.S. Circuit Court of Appeals, it was evident that the foundation's lawyers were playing on a legal field tilted sharply in favor of the administration.

Where, outside of the movies - Brazil (1985) - or George Orwell's 1949 novel, 1984, can such sham justice be given credibility?

No one would deny the federal government a legitimate interest in protecting limited types of secrets, especially in times of war. But the current administration, with its secret courts, secret prisons, and, now, secret evidence, takes secrecy to an Alice in Wonderland extreme.

One of the pillars of Western jurisprudence is the adversarial system, which allows both sides to have access to the evidence that may be relevant to the case. In this case, however, the administration is saying, "Hey, we can't let you see the evidence but, take our word, we looked at it and we're innocent."

If such specious logic prevails, there is no limit to the power that can accrue to a government intent on doing whatever it wishes in the name of national security.

Federal officials, the courts, and the American people would do well to remember that guarding secrets for the sake of secrecy overwhelms the precious liberty which the nation has fought to protect for more than 200 years.



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