Down The Rabbit Hole Head First
Wired blogs Threat Level, live blogged today's 9th Circuit hearing on the NSA's spying. It's like watching that old "who's on first" routine:
Expanding on that theme, the government argues that the Al-Haramain case needs to be thrown out because the secret document that the government accidentally gave the foundation is so secret that it is outside of the case.
Bondy claims the plaintiff's memories of the document can't be allowed into the case because the only way to test them is against the "totally classified" document.
"Once the document is out of the case, which it has to be since it is privileged, the only way to test the veracity of their recollections is to compare it to the document," Bondy says.
Hawkins_michael_daly The lower court allowed the case to go forward based on the Al-Haramain Foundation lawyers' memories of the document, but ruled that the document itself was not allowed into the case.
Judge Hawkins (left, file photo) wonders if the document is really that secret?
"Every ampersand, every comma is Top Secret?," Hawkins asks.
"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," Bondy answers.
The government says the purported log of calls between one of the Islamic charity directors and two American lawyers is classified Top Secret and has the SCI level, meaning that it is "secureCheshire compartmented information." That designation usually applies to surveillance information.
Judge McKeown: "I feel like I'm in Alice and Wonderland."
Eisenberg: "I feel like I'm in Alice in Wonderland, too."
Read the whole thing. It is the epitome of Bushian logic. I'm not sure the legal system is even capable of handling it. It's Alice meets 1984.
Update: The Washington Post has the story in today's paper:
The bottom line here is the government declares something is a state secret, that's the end of it. No cases. . . . The king can do no wrong," said Judge Harry Pregerson, one of three judges from the U.S. Court of Appeals for the 9th Circuit who grilled administration lawyers at length over whether a pair of lawsuits against the government should go forward.
Deputy Solicitor General Gregory G. Garre was forced to mount a public argument that almost nothing about the substance of the government's conduct could be talked about in court because doing so might expose either the methods used in gathering intelligence or gaps in those methods.
"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "
At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back
That judge sounds mad as a hatter.