Wednesday, January 31, 2007

Kafka was an optimist

[Just to keep my hand in. This is from earlier in the week, something I thought would get picked up in left blogistan, but didn't. Not that mentioning it here will remedy that. While you're enjoying the Libby trial, keep this in mind. In the meantime, still reading Jenkins, so this will have to do for now...]

Much as I would love to see the walls come tumbling down, I'll settle for this:

Some cases challenging the program, which monitored international communications of people in the United States without court approval, have also involved atypical maneuvering. Soon after one suit challenging the program was filed last year in Oregon, Justice Department lawyers threatened to seize an exhibit from the court file.

This month, in the same case, the department sought to inspect and delete files from the computers on which lawyers for the plaintiffs had prepared their legal filings.

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.”
This issue is this: civil lawsuits are conducted in public. Thus, what goes to court becomes a matter of public record, unless extraordinary circumstances dictate such matters must be "in camera," that is, held in private so the information is not widely distributed. Understandably, this happens in cases involving national security, and it's why the CIA, for instance, is usually reluctant to go to court. You can only exclude so much evidence from the case, before there is no case at all. Unless you are the Gonzales' Justice Department:

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.
There are serious questions of separation of powers at work here. Ordinarily, all documents are held by the court, so no one can question their accessibility.

“The ([Sixth Circuit} court raised questions about the procedures the government had used to file classified submissions in the case and the propriety and integrity of those procedures,” said Ms. Beeson, associate legal director of the A.C.L.U., which represents the plaintiffs in the appeal.

“They were also concerned about the independence of the judiciary,” given that “the Justice Department retains custody and total control over the court filings.” Ms. Beeson said.
And then there's the case of the document the government decided had to be retrieved even from the court record. They were sending the FBI to purge the record when the judge in the case stopped them.

Oh, just read the article. This whole matter gives a new meaning to "Kafkaesque."

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