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.With respect to the complainants who have filed cases:
Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.
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.Why are they seeking to seize exhibits and not seeking instead to seal a sensitive document from public view instead? Why can't they make the argument and get a court order? It demonstrates utter contempt for the legal process.
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.” (emphasis added)
Nancy S. Marder, a law professor at the Chicago-Kent College of Law and an authority on secrecy in litigation, said the tactics were really extreme and deeply, deeply troubling.More proof of the bully mentality permeating this administration and its Justice Department. Until people stand up to the bully, the bully will try to get away with all they can. And it's apparently been quite a lot...
“These are the basics that we take for granted in our court system,” Professor Marder said. “You have two parties. You exchange documents. The documents you’ve seen don’t disappear.”