How good lawyers sprout whiskers and top hats after drinking too much national-security punch.

The law, lawyers, and the court.
Aug. 16 2007 6:45 PM

Lawyers in Wonderland

How good lawyers sprout whiskers and top hats after drinking too much national-security punch.

Alice in Wonderland.
Alice in Wonderland

A three-judge panel of the 9th Circuit Court of Appeals heard from some funny government lawyers Wednesday who still think "trust me" is a persuasive argument. They were insisting on the dismissal of a series of challenges to the Bush administration's warrantless wiretapping programs, on the grounds that the very existence of the lawsuits pose a threat to national security. (You can listen to the argument at this link.)

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The consolidated cases represent appeals from various people who claim to have evidence that they've been spied on. Plaintiffs in one case seek to offer proof of a creepy secret spy room from which AT&T allegedly assisted the NSA in conducting a massive surveillance dragnet. Plaintiffs in a second case actually laid hands on a top-secret government phone log of intercepted calls between an Islamic charity and its American supporters, before the administration demanded its return.

But the secret spy room is a secret, and the secret phone log—although it was accidentally turned over to the plaintiffs—is also a secret. (So much so that it is now "stored in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and a few select federal judges.") The secret phone document is so very secret that government officials had to shred all drafts of the plaintiffs' brief   in the case—including a top-secret banana peel.

According to government lawyers, even to discuss the programs at issue in this case is to harm the national interest. Whether or not they even exist is also a secret. Any proof of the programs' existence cannot be tested because of the secrecy thing. One of the judges on the panel, M. Margaret McKeown, complained of feeling "like I'm Alice in Wonderland" at Wednesday's arguments. No wonder. Government lawyers increasingly behave less like attorneys than grim constitutional bouncers.

Early in the argument in the first case, Hepting v. AT&T, Judge McKeown asked Deputy Solicitor General Gregory G. Garre whether President Bush still stood behind his statement that the government does no domestic wiretapping without first obtaining a court warrant. Garre said yes. McKeown wondered aloud how it can possibly be "a state secret" that that the government is not intercepting millions of customers' communications illegally. How can the absence of an illegal program be a secret?

In a rhetorical flourish that would impress even the March Hare, Garre responded that if the appeals court allowed that issue to proceed to trial, the plaintiffs would be "forcing the government to prove a negative ... that takes us precisely into the heartland of state secrets." Follow along, little children: If the government had to prove that something that doesn't happen, doesn't happen, it would have to divulge everything that does happen. Um, how's that?

Judge Harry Pregerson then asked Garre whether the courts must rubber-stamp every single executive-branch determination of a state secret. Garre helpfully parsed the difference between courts giving "utmost deference" to executive-branch claims and "absolute deference." Apparently there is a difference. It smells a lot like cherry tart.

The through-the-looking-glass analysis also kicked in during the second argument of the day, al-Haramain v. Bush, relating to a top-secret document—accidentally turned over to the plaintiffs—that certainly suggests the Islamic charity in question was subject to surveillance. Justice Department attorney Thomas Bondy, representing the Bush administration, argued that the al-Haramain plaintiffs were forced to rely on their fallible human memories of the call logs at issue, since they had been required to return the actual secret documents to the government. Because the only way to confirm the accuracy of their recollections would require matching those recollections against the actual secret document, which is—say it with me now—a secret, there is no way to test their claims.

Bondy also said—apparently with a straight face—that the government would not confirm or deny whether individual plaintiffs were being surveilled by the secret nonexistent NSA program, because the whole point is to preserve that ambiguity. Or, as he put it, "it will make certain things certain that are not certain."

Now, I am for more Mad Hatters in the law as a general matter. Off with his head! But arguments like those being made in the NSA cases—arguments that executive claims of state secrets are, like rabbit holes, bottomless places where all logic and scrutiny fail—are more troubling today than ever. Because now Jose Padilla—the details of whose abuse in government detention is also a "state secret"—faces the prospect of a lifetime in prison.

Secrets are not a legal argument so much as a legal conclusion, a topsy-turvy claim by the government that everything the President does in secret is necessarily legal. If that sounds familiar it's because the White Rabbit used, as the final damning evidence in the case of Knave vs. Stolen Tart, the same sideways argument:

Don't let him know she liked them best,
For this must ever be
A secret, kept from all the rest,
Between yourself and me.

TODAY IN SLATE

History

The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Television

See Me

Transparent is the fall’s only great new show.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

  News & Politics
Damned Spot
Sept. 30 2014 9:00 AM Now Stare. Don’t Stop. The perfect political wife’s loving gaze in campaign ads.
  Business
Moneybox
Sept. 30 2014 10:44 AM Bull---- Market America is overlooking a plentiful renewable resource: animal manure.
  Life
Atlas Obscura
Sept. 30 2014 10:10 AM A Lovable Murderer and Heroic Villain: The Story of Australia's Most Iconic Outlaw
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Behind the Scenes
Sept. 30 2014 10:59 AM “For People, Food Is Heaven” Boer Deng on the story behind her piece “How to Order Chinese Food.”
  Arts
Brow Beat
Sept. 30 2014 10:48 AM One of Last Year’s Best Animated Shorts Is Finally Online for Free
  Technology
Future Tense
Sept. 30 2014 7:36 AM Almost Humane What sci-fi can teach us about our treatment of prisoners of war.
  Health & Science
Bad Astronomy
Sept. 30 2014 7:30 AM What Lurks Beneath the Methane Lakes of Titan?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.