At least I'm not the only person
feeling this way:
If you're the U.S. federal government, how can you prove to someone that something should be kept secret if you can't tell them what the secret is because it's a secret? If you're a federal judge, how can you decide whether someone gets to keep a secret if the secret-keeper won't say what the secret is?
The debate over liberty versus security in this post-9/11 age took a trip down the rabbit hole and through the looking glass in a federal courtroom in San Francisco Wednesday, over the alleged U.S. National Security Agency (NSA) program of monitoring the phone and e-mail communications of Americans to try to stop terrorists before they strike.
More than one participant likened the testimony to "Alice's Adventures in Wonderland," the classic children's book by Lewis Carroll. Compare and contrast this excerpt from the book with what went on in court. This snippet occurs when Alice, attending the Mad Hatter's tea party, suddenly notices the March Hare's curious timepiece.
"'What a funny watch!' Alice remarked. 'It tells the day of the month, and doesn't tell what o'clock it is!'
"'Why should it?' muttered the Hatter. 'Does your watch tell you what year it is?' Alice felt dreadfully puzzled. The Hatter's remark seemed to have no sort of meaning in it, and yet it was certainly English."
Testimony at the hearing Wednesday was in English but often left the judges "dreadfully puzzled."
The headline for the article: "NSA suit plays out like Alice's Wonderland". Here's what happened:
The DOJ sought the dismissal because, at trial, it could be revealed that the NSA worked with AT&T to wiretap Americans without a warrant, which is a state secret, if indeed such a program existed at all. The government can't say, because that's a state secret.
Airing evidence in the case "would reveal the sources, methods and operational details" of government intelligence activities, argued Gregory Garre, deputy solicitor general in the DOJ.
Appellate Judge Margaret McKeown responded by paraphrasing public comments by U.S. President George W. Bush, whom she reported as saying, "There is no surveillance of domestic phone calls without a warrant."
The Bush comment came up again when AT&T attorney Michael Kellogg, also argued for dismissal on the Wonderland-like grounds that allowing the case to go forward, yet not violate state secrets, would prohibit AT&T from presenting a defense.
"Any sort of program is a state secret," Kellogg said
"Even if the program doesn't exist?" McKeown replied, referencing the president's claim.
"Whether or not it exists is a state secret," Kellogg answered.
"But if President Bush said it's not happening, how could that be a secret?" the judge asked.
If you're wondering where you've heard this before, Kafka might come to mind, or perhaps
Lewis Carroll:
`What do you know about this business?' the King said to Alice.
`Nothing,' said Alice.
`Nothing whatever?' persisted the King.
`Nothing whatever,' said Alice.
`That's very important,' the King said, turning to the jury. They were just beginning to write this down on their slates, when the White Rabbit interrupted: `Unimportant, your Majesty means, of course,' he said in a very respectful tone, but frowning and making faces at him as he spoke.
`Unimportant, of course, I meant,' the King hastily said, and went on to himself in an undertone, `important--unimportant-- unimportant--important--' as if he were trying which word sounded best.
Some of the jury wrote it down `important,' and some `unimportant.' Alice could see this, as she was near enough to look over their slates; `but it doesn't matter a bit,' she thought to herself.
At this moment the King, who had been for some time busily writing in his note-book, cackled out `Silence!' and read out from his book, `Rule Forty-two. All persons more than a mile high to leave the court.'
Everybody looked at Alice.
`I'm not a mile high,' said Alice.
`You are,' said the King.
`Nearly two miles high,' added the Queen.
`Well, I shan't go, at any rate,' said Alice: `besides, that's not a regular rule: you invented it just now.'
`It's the oldest rule in the book,' said the King.
`Then it ought to be Number One,' said Alice.
The King turned pale, and shut his note-book hastily. `Consider your verdict,' he said to the jury, in a low, trembling voice.
`There's more evidence to come yet, please your Majesty,' said the White Rabbit, jumping up in a great hurry; `this paper has just been picked up.'
`What's in it?' said the Queen.
`I haven't opened it yet, said the White Rabbit, `but it seems to be a letter, written by the prisoner to--to somebody.'
`It must have been that,' said the King, `unless it was written to nobody, which isn't usual, you know.'
`Who is it directed to?' said one of the jurymen.
`It isn't directed at all,' said the White Rabbit; `in fact, there's nothing written on the outside.' He unfolded the paper as he spoke, and added `It isn't a letter, after all: it's a set of verses.'
`Are they in the prisoner's handwriting?' asked another of they jurymen.
`No, they're not,' said the White Rabbit, `and that's the queerest thing about it.' (The jury all looked puzzled.)
`He must have imitated somebody else's hand,' said the King. (The jury all brightened up again.)
`Please your Majesty,' said the Knave, `I didn't write it, and they can't prove I did: there's no name signed at the end.'
`If you didn't sign it,' said the King, `that only makes the matter worse. You MUST have meant some mischief, or else you'd have signed your name like an honest man.'
There was a general clapping of hands at this: it was the first really clever thing the King had said that day.
`That PROVES his guilt,' said the Queen.
`It proves nothing of the sort!' said Alice. `Why, you don't even know what they're about!'
`Read them,' said the King.
The White Rabbit put on his spectacles. `Where shall I begin, please your Majesty?' he asked.
`Begin at the beginning,' the King said gravely, `and go on till you come to the end: then stop.'
These were the verses the White Rabbit read:--
`They told me you had been to her,
And mentioned me to him:
She gave me a good character,
But said I could not swim.
He sent them word I had not gone
(We know it to be true):
If she should push the matter on,
What would become of you?
I gave her one, they gave him two,
You gave us three or more;
They all returned from him to you,
Though they were mine before.
If I or she should chance to be
Involved in this affair,
He trusts to you to set them free,
Exactly as we were.
My notion was that you had been
(Before she had this fit)
An obstacle that came between
Him, and ourselves, and it.
Don't let him know she liked them best,
For this must ever be
A secret, kept from all the rest,
Between yourself and me.'
`That's the most important piece of evidence we've heard yet,' said the King, rubbing his hands; `so now let the jury--'
`If any one of them can explain it,' said Alice, (she had grown so large in the last few minutes that she wasn't a bit afraid of interrupting him,) `I'll give him sixpence. _I_ don't believe there's an atom of meaning in it.'
The jury all wrote down on their slates, `She doesn't believe there's an atom of meaning in it,' but none of them attempted to explain the paper.
`If there's no meaning in it,' said the King, `that saves a world of trouble, you know, as we needn't try to find any. And yet I don't know,' he went on, spreading out the verses on his knee, and looking at them with one eye; `I seem to see some meaning in them, after all. "--said I could not swim--" you can't swim, can you?' he added, turning to the Knave.
The Knave shook his head sadly. `Do I look like it?' he said. (Which he certainly did not, being made entirely of cardboard.)
`All right, so far,' said the King, and he went on muttering over the verses to himself: `"We know it to be true--" that's the jury, of course-- "I gave her one, they gave him two--" why, that must be what he did with the tarts, you know--'
`But, it goes on "They all returned from him to you,"' said Alice.
`Why, there they are!' said the King triumphantly, pointing to the tarts on the table. `Nothing can be clearer than that. Then again--"before she had this fit--" you never had fits, my dear, I think?' he said to the Queen.
`Never!' said the Queen furiously, throwing an inkstand at the Lizard as she spoke. (The unfortunate little Bill had left off writing on his slate with one finger, as he found it made no mark; but he now hastily began again, using the ink, that was trickling down his face, as long as it lasted.)
`Then the words don't fit you,' said the King, looking round the court with a smile. There was a dead silence.
`It's a pun!' the King added in an offended tone, and everybody laughed, `Let the jury consider their verdict,' the King said, for about the twentieth time that day.
`No, no!' said the Queen. `Sentence first--verdict afterwards.'
`Stuff and nonsense!' said Alice loudly. `The idea of having the sentence first!'
`Hold your tongue!' said the Queen, turning purple.
`I won't!' said Alice.
`Off with her head!' the Queen shouted at the top of her voice. Nobody moved.
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