Friday, January 26, 2007

U.S. Justice Dept reinventing the legal system in NSA cases?

An article in the NYTimes today, "Secrecy Is at Issue in Suits Opposing Domestic Spying," suggests Americans are facing significant threats from the Justice Department to the impartial functioning of its judicial branch. The Justice Department is taking extraordinary secrecy measures in the NSA wiretap cases and is arguably taking on a quasi-judicial role by asserting control over the processes used in the lawsuits. For example, the Justice Department is submitting their written responses to lawsuits filed "...by placing them in a room at the department." Normally a response would be sent to the complainants in a case. Well not anymore if you happen to be suing the government for illegally wiretapping you. Parties have to go to the Justice Department to see them! Here are a few more details of the measures being employed:
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.

Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.
With respect to the complainants who have filed cases:
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.” (emphasis added)
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.
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.

“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.”
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...