Christina Drummond,
ACLU of Washingon
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January 31, 2007


The word I heard most this morning – kafkaesque.
For those who may not be familiar with Kafka’s novel The Trial, I highly recommend both it and the film adaptation by Orson Welles. The story is about a man arrested and put on trial for an unspecified crime that he cannot get details about because the system doesn’t allow it.

Fresh from breakfast with the plaintiffs, legal team and other ACLU folks here in Cincinnati, I am struck by how many times the word “Kafkaesque” came up in conversation about the government’s legal practices around terrorism cases. Why? Because the government’s lawyers have taken to claiming that their evidence is so secret that only the government’s team and the judges can see it, not the opposing party.

Like me you’re likely thinking, really? Well, Courts have in the past allowed such secret evidence to prove an existing relationship that’s tangential to the actual case at hand. So, you could introduce files to prove a client-attorney or doctor-patient relationship.

But recently there has been a growing trend of the Justice Department’s use of a ‘terrorist cases are special’ doctrine, where parties opposing the government lawyers have no rights to the evidence because it’s “classified”.

I understand wanting to keep a client’s files private when proving a relationship to a witness. But that’s different than presenting evidence on someone’s guilt/innocence or in today’s hearing, the mootness of the case (i.e. whether or not the hearing should continue). For ACLU v. NSA, the Government introduced evidence bearing on one of the key points to be argued, yet that evidence has only been made available to the judges

How can one side effectively argue when it doesn’t have all the evidence? For those of you who may be learning of this for the first time – know that this practice is also used in criminal cases, where a defendant is tried for terrorism, but is not shown the evidence against him because it is “secret”. It appears that for anything, if it’s related to terrorism, then it’s a state secret – or as the government would like to have it, anything goes.

So where does this leave us? For now, stay tuned, watch the growing interest from Congress (covered by blogs like 27B Stroke6) and take action!

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