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Friday, Jan 26, 2007, 12:15 am

Bush Administration Employs Alice in Kafkaland Defense for Warrantless Wiretap Civil Suits

By Brian Zick
Adam Liptak in the NY Times reports on the pending civil suits against Bush's NSA warrantless spying:
Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.
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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.
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The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted him to conduct unusual research.

“Sometime during all of this,” Mr. Eisenberg said, “I went on Amazon and ordered a copy of Kafka’s ‘The Trial,’ because I needed a refresher course in bizarre legal procedures.”

A federal district judge in the case, Garr M. King, invoked another book after a government lawyer refused to disclose whether he had a certain security clearance, saying information about the clearance was itself classified.

“Frankly, your response,” Judge King said, “is kind of an Alice in Wonderland response.”
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“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.”
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