The Bush Justice Department seems to think it can make whatever rules it chooses in the various civil suits filed in response to Chimpy’s warrantless eavesdropping. The judges presiding in these cases disagree.
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.
In ordinary civil suits, the parties’ submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.
At the meeting this month, judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records.
“The court raised questions about the procedures the government had used to file classified submissions in the case and the propriety and integrity of those procedures,” said Ms. Beeson, associate legal director of the A.C.L.U., which represents the plaintiffs in the appeal.
“They were also concerned about the independence of the judiciary,” given that “the Justice Department retains custody and total control over the court filings.” Ms. Beeson said.
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.”