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

By Dahlia Lithwick
Posted Thursday, Aug. 16, 2007, at 6:45 PM ET
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.)

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.

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Dahlia Lithwick is a Slate senior editor.
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Remarks from the Fray:

I marvel at our ability to take something relatively simple and make it overly complicated, woefully inefficient and unpopular.

No reasonable person would disagree with doing whatever is necessary (within the law) to protect the nation. Wire tapping in itself makes sense. What I can't get my head around is how we managed to make this so convoluted.

The legal apparatus to obtain warrants has been in place at least 50 years. The process of obtaining warrants and keeping the information secret existed well before 9/11. If the surveillance is "time sensitive" it is possible to monitor a suspect and get the warrant later. The bottom line is that the warrants aren't hard to get and don't pose a real limitation.

So why change?

If the surveillance system is antiquated go to the federal courts and get it "tweaked". It wouldn't be hard in a post 9/11 world.

Even the term "domestic spy program" makes little sense. Words are important, what you name something frames the initial reaction. This isn't just an example of inefficiency, it's just bad politics.

I'm not against domestic surveillance...I'm against the lack of plain common sense we've used to implement the program. This really isn't that hard.

--AAW

(To reply, click here.)

Unlike Lithwick, who I think is trying too hard to shoehorn her view into a literary device, I think the government's arguments are more colorable than she gives them credit for. I see a noticeable difference between "utmost deference" and "absolute deference," the former being strict scrutiny by another name and the latter asks judges to ignore what the executive branch is doing. I also see how forcing the government to describe what it is not doing can be a secret just as much as knowledge of what it is doing can be a secret. Either one helps describe the bounds of the government's capabilities, informing terrorists and foreign actors either of what tactics will likely work (because there is no program to detect/intercept it) or will not likely work (because there is). These are colorable arguments. If they weren't, the judges would have been talking about sanctions, not the issues.

I also see that the government is essentially forced into making these arguments, because if they don't and something bad happens and someone can show that the bad thing could have been stopped if only the government pressed Project XYZ as hard as possible, heads roll. It is easy for us to say that these programs are not worth the price of freedom, because I (and Lithwick) don't have to worry about getting calls from the mothers and children of those who die in terrorist attacks. Nobody pickets our offices. Nobody buys the property next door to our house and sets up a long-term protest camp. But I wonder whether, if we really were the ones that everyone would blame should something go terribly wrong, whether Lithwick and I would find ourselves before a skeptical three-judge panel making the exact same arguments as the officials she derides, knowing that it's okay if we're overturned -- at least we've covered ourselves. And then we go home thanking the adversarial process for doing its job.

--Sycamancy

(To reply, click here.)

It is very eerie to see the USA converging toward practices of the Nazis under Hitler.

The assertion of Presidential powers, not subject to review reminds me of the phrase, "it is the Fuhrer's wish," (der Fuhrer's wunsch) as sufficient justification for any action in the Third Reich.

Hitler also ignored his experienced generals and thought of himself as a supreme strategist, surrounded by toadies like Goebbels and Goering, much as Bush ignores his experienced generals and relies on guidance from people like Cheney and Rumsfeld.

And the phrase Lithwick quotes, "it will make certain things certain that are not certain," and our use of Presidentially approved CIA kidnappings and torture in secret prisons, is all too reminiscent of Hitler's infamous "Nacht und Nebel" decree, that people should just disappear into the uncertainty of the night and fog.

--bubba_barry

(To reply, click here.)

All of the judges were pretty snarky, but Pregerson was a thing of wry beauty. Dahlia has it exactly right: the state secret defense as deployed in this case is hilariously circular. Two questions, though: what next (in this case and the parallel NSA cases running around less friendly circuits)? The 9th seems poised to force the issue and put a stop to this nonsense, but we all know what that means. And what effect will the recent Congressional stamp of approval on the NSA program have? It came up a few times yesterday, and--while I can't see that it is all that legally significant to the AT&T case--it does seem to take some of the wind out of plaintiffs' sails...or at least some of the bite out of the judges' righteous indignation.

--yzylan

(To reply, click here.)

(8/19)

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