Now that everything’s changed, and the war against terrorism demands that all our nastiness falls under the doctrine of state secrets (for our own good), the nature of litigation is taking a turn as well.  As the 9th Circuit prepares to hear argument in Jewel v. National Security Agency, the government is making sure that the judges are good boys and don’t spill any beans.  From Politico :

On Wednesday, Justice Department Attorney H. Thomas Byron sent the court a letter (posted here) essentially warning the judges that since the argument is taking place in a courtroom open to the public the court should be careful not to discuss any national security secrets during the session.

“All classified information has been provided to the Court with the understanding that the secrecy of this information will be properly protected,” Byron said. “We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information….If the Court has questions about the classified information in the record, we are prepared to address those questions in an appropriate secure environment with only the judges, cleared court personnel, and the attorneys for the government present, to ensure appropriate safeguards against disclosure.”

Wait, you say.  What about the plaintiff’s lawyers being able to offer argument, part of that whole “due process” thing they keep talking about in the Constitution?  Heh.  Don’t get your panties in a twist, as it’s not like the plaintiff’s lawyers were allowed to see the government’s secret brief anyway.  That was for judge’s eyes only.  

The Justice Department filed a classified brief in the case, as well as declarations that are not public and which plaintiffs’ lawyers have not seen. The parties challenging the surveillance objected to the government’s classified brief, but on Thursday the panel assigned to the case ruled, 2-1, that the secret brief would be accepted. 

Even if the court was to close the courtroom and hold argument in the back room star chamber, it’s not like the other side would have a clue what they were talking about.  They can’t. It’s secret.  The judges get it, at least two out of the three, that they must protect our country against terrorism by concealing the government’s wrongs lest the terrorists know that we tap the phones of Americans without warrants.  Oh crap, I just gave it away.  Strike that. You never read it here.  I never wrote it. It never happened.

But if you think this is bad, it’s better than what the government has argued in other cases, where they refuse to let the court in on the secret because federal judges can’t be trusted.  Ironically, they may not get much of a fight on that point.

The case relates to former President Bush’s allowing the tapping of phones and interception of emails to protect us from the red scare terrorist threat.

The lawsuits argue that the NSA’s efforts to monitor e-mails and telephone calls in the U.S. violate the Fourth Amendment despite legislation Congress passed in 2008—with then-Sen. Barack Obama’s vote—that sought to legalize a program President George W. Bush initiated without Congressional authority after the 9/11 attacks.

Not even the secret FISA courts were fast enough or trustworthy enough to get the job done, so the government just did what it had to do in this decade of crisis to save us.  Even now, it’s a big secret that they ignored the 4th amendment and searched and seized at will.  And all you whiners who would deny the government it’s weapons in the war against terrorism ought to consider its effectiveness. You’re still alive, right?  That’s because of the swift and decisive action on the part of our government to tap into anything they wanted.  Prove me wrong.

But how is the court, or the plaintiff’s counsel, supposed to flesh out the arguments and issues in the case when the government won’t let the other side see its secrets, and commands the judge’s to keep their yaps shut at oral argument?  Well, they can’t.  They can argue the points that the government allowed them to argue, and the judges can ask whatever questions don’t trample on the government’s right to keep their bad stuff secret.  And apparently, this is good with the judges.

Perhaps I’m just an old cynic, unappreciative of the efforts my government has made to protect me from terrorists, even if it meant bending breaking the rules.  After all, few know better than me that 9/11 happened and that thousands were slaughtered in acts of gruesome terror.

Nah. The old joke, I’m from the government, trust me, is still just a joke. There’s no adversary system when the government can conceal its brief from the other side, or tell the judges what they may not ask.  That the judges are good with this, taking their marching orders from the Department of Justice, isn’t going to instill faith in the integrity of the system, but make clear that we’re only as honorable as the government and its enablers will allow.  And that’s not good enough.