Secret Laws, Secret Briefs – Fighting Illegal Wiretaps Blindfolded

This LA Times article about lawyer Jon Eisenberg describes the difficulty of a getting fair trial when the government has decided an issue involves national security.

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.

Essentially the government won’t say if wire tapping has occurred and if it did Al-Haramain isn’t supposed to know about it anyway. With the ability to arbitrarily declare things state secrets and then stone wall attempts to uncover what happened, no one knows the extent or legality of the program. It follows that the rules used to cover-up wire taps now will inevitably be expanded to other forms of surveillance and monitoring.

Certainly this case would have died like the rest but the government released documents it shouldn’t have:

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.

Surveilling the lawyers? Unquestionably, this overreach is why oversight of these activities is necessary. Doing an end run around attorney-client privilege and covering it up by invoking state secrets is plain sleazy.

Luck was the only reason that the government may be held accountable. No doubt the sketchy details of the program that have been released are ugly, clearly, then the things we don’t see must truly be awful.