ATTORNEYS FOR the Justice Department appeared before a federal judge in Washington this month and asked him to dismiss a lawsuit over the detention of a U.S. citizen, basing their request not merely on secret evidence but also on secret legal arguments. The government contends that the legal theory by which it would defend its behavior should be immune from debate in court. This position is alien to the history and premise of Anglo-American jurisprudence, which assumes that opposing lawyers will challenge one another's arguments.
Ahmed Abu Ali was arrested in June 2003 in Saudi Arabia. He and his family claim the arrest took place at the behest of U.S. officials who, though unable to bring a case against him, have encouraged the Saudis to keep him locked up. The facts are murky, and Judge John D. Bates refused in December to dismiss the case, writing that he needed more information before he could decide whether a U.S. court has jurisdiction.
Since then, the U.S. government has acted to frustrate all reasonable searches for answers. It has moved to stay discovery based on secret evidence. It has proposed adding to the facts at Judge Bates's disposal by submitting secret evidence that Mr. Abu Ali's attorneys would have no opportunity to challenge. Most recently, it urged that the case be dismissed on the basis, yet again, of secret evidence -- this time supplemented with what a Justice Department lawyer termed "legal argument [that] itself cannot be made public without disclosing the classified information that underlies it."
Judge Bates is cautious and generally deferential to government concerns. Yet he was evidently disturbed by this argument, at one point asking whether the government could identify "any case in which . . . even the legal theory for dismissal is not known to the other side?" The government could not....
So now the government is stating not only that it should be entitled to have US citizens arrested using secret evidence, but using a legal argument that itself is so secret that they can't tell the opposing counsel what they're arguing.
Seriously, what on earth does the government think it's doing? That argument wouldn't fly in the most right-wing, deferential court in the land. (Perhaps especially not in a right-wing court, as the right-wing tends to be a tad tetchy about government interference in most things.)
What will be interesting to see is what happens once the government has a judgement against it, as is almost inevitable in this case. There will be appeals, of course; this administration does not accept loss. But surely, even if he'd known anything, at this late date, there's no useful information that Ali could have. Assuming that he was somehow affiliated with a terrorist group, anything he knew couldn't be used in evidence against him at trial; it would be irretrievably contaminated by the torture he's undergone in Saudi Arabia's prisons. There is simply no point in the government continuing with this case, except to establish the principle that it is within their purview to capture and torture American citizens at their whim.
The administration will, of course, capture and torture anyone it pleases. We can only hope that the courts will deny it any semblance of legality, and eventually, a sane administration may replace this one.
(Previous entry on this topic: American Gulag, January 3 2005)Posted by iain at February 21, 2005 12:17 PM