Christina Drummond,
勛圖眻畦 of Washingon
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January 31, 2007

勛圖眻畦 v. NSA

The word I heard most this morning - kafkaesque.
For those who may not be familiar with Kafkas novel , I highly recommend both it and the 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 doesnt allow it.

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

Like me youre likely thinking, really? Well, Courts have in the past allowed such secret evidence to prove an existing relationship thats 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 clients files private when proving a relationship to a witness. But thats different than presenting evidence on someones guilt/innocence or in todays hearing, the mootness of the case (i.e. whether or not the hearing should continue). For 勛圖眻畦 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 doesnt 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 its related to terrorism, then its 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 ) and !

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