With Both Hands Tied

I shuddered upon reading this article in the Los Angeles Times and that shudder was a combination of fear and disgust. I finally had to admit that this country has become just like Stalin's Soviet Union. We have gulags both known (Guantanamo Bay) and unknown (the black holes in Eastern Europe), we have sanctioned government spying on citizens, and now we even have show trials.

Oakland lawyer Jon Eisenberg calls the case of Al-Haramain Islamic Foundation v. George W. Bush the strangest he has ever handled. How strange? Eisenberg was required to write one of his briefs in a windowless government office, without notes or lawbooks, under the watchful eye of two federal security guards.

When he got hungry, one of the guards brought him a banana. And when he finished, a security official shredded all his drafts — and even the banana peel, Eisenberg said.

The brief-writing session was just one facet of the extraordinary secrecy surrounding the Al-Haramain case, Eisenberg said. Al-Haramain is one of dozens of plaintiffs across the nation that have filed suit, claiming they were illegally spied on by the government as part of the war on terror.

In most of the cases, including Al-Haramain's, the government has contended that any disclosure about the surveillance program would reveal state secrets and has refused to say whether the plaintiffs were wire-tapped. It has then moved to dismiss the complaints.

But in the Al-Haramain case, the Treasury Department inadvertently disclosed National Security Agency call logs stamped "top secret" indicating that the charity and two of its attorneys had been surveilled. Last year, U.S. District Judge Garr King ruled that the logs -- referred to in the court papers as "The Document" — gave the charity standing to sue in federal court.


In the Al-Haramain case, Eisenberg has had to respond to a government filing he was not allowed to see. [Emphasis added]

The article contains a Kafka-like description of Mr. Eisenberg's drafting of that response. He had to do the drafting in a government office without notes and without access to legal sources to cite as authority. His cell phone was taken from him as was the battery to his lap top. When he finished, he was not allowed to take a copy of his response with him.

And when he goes to argue his position before a three-judge appellate panel, he will have to do so without knowing just what the government's position is because the government has invoked the "state secrets" mantra throughout the case.

He does know what the general position of the government is in this and other similar cases attacking the government's spying program is, because the government freely admits to that position:

Asked Monday if there was any way, under the government's interpretation of the law, that someone could contest the surveillance program, a senior Justice Department official replied, "In the current context, no."