Trial Procedures Via Kafka

In the typical trial in the US, the parties go through a phase known as "discovery." Depositions are taken, evidence is shared, interrogatories are answered. Each side knows what the other side has: there's no chance to hide the salami, nor any way to alter it. That's not how the federal government is operating in the various suits involving the warrantless NSA wire tapping, however. From today's NY Times:

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.

But now the procedures have started to meet resistance. At a private meeting with the lawyers in one of the cases this month, the judges who will hear the first appeal next week expressed uneasiness about the procedures, said a lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.

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.”

The extraordinary measures insisted upon by the government are clearly designed to hide and even manipulate evidence, and the government has not provided any rational basis for those measures because there is none. A document which establishes that the NSA engaged in a warrantless wire tap (and that effectively proves the plaintiff's case) is not crucial to the nation's defense and should not be "classified" by the government. The fact that it is simply makes it clear how far this administration is willing to go to hide its own malfeasance.

Hopefully the nation's jurists will come down hard on the Justice Department and its warping of the trial procedures put into effect to guarantee fair play and due process. If they don't, we are doomed.