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They are truly out of control:
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.
Just when you think things can't get more absurd.

Originally posted to Daily Kos on Mon Feb 21, 2005 at 09:21 AM PST.

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Comment Preferences

  •  I think they have a Secret Plan (none)
    to win the War on Terror
  •  Snark (none)
    These big people know best...
  •  Why do we need a congress and a judiciary again? (3.50)
    Just askin'.

    The `Mayberry Machiavellians' never bothered to fully read The Prince.

    by RichM on Mon Feb 21, 2005 at 09:18:19 AM PST

    •  They have important roles to play! (none)
      The Congress must fawn over war criminals appointed to high office, stand and cheer for Our President while waving purple fingers, and hold spitting contests with opposition members as targets.

      The Judiciary must award elective offices when elections don't turn out the way they should and erect stone tablets carved with religious prohibitions that apply to all who do not contribute enough to Our President's party to quality for single-bid contracts.

      As any Right-thinking school child who does not hate America will tell you, that is exactly what our Founding Fathers wanted and it's what God wants, too.

      "Injustice wears ever the same harsh face wherever it shows itself." - Ralph Ellison

      by KateCrashes on Tue Feb 22, 2005 at 09:25:45 AM PST

      [ Parent ]

  •  Scary... (4.00)
    How can a legal theory be "immune" from debate in court? Incredible...
  •  That's quite a sentence (3.87)
    This position is alien to the history and premise of Anglo-American jurisprudence, which assumes that opposing lawyers will challenge one another's argument.

    Pretty much sums it up right there. It's alien not just the Constitution, which they've already merrily set about trashing, but alien to the entire history, nay the very premise, of the rule of law.

    So, there.

    But we can trust them; they have our best interests at heart.

  •  boiling a frog slowly (4.00)
    What's a fascist society look like from the inside?

    Bloggin Blagojevich's Blunders: do you want to see Roddy B challenged in the Dem Primary?

    by Carl Nyberg on Mon Feb 21, 2005 at 09:21:53 AM PST

  •  Welcome to American Gulag® (3.83)
    A new reality show on Fox.

    Not far from the truth.

  •  Just when you think things can't get more absurd (3.50)
    they do.  

    Secret legal theory that can't be debated?  I wish I could use that argument.

    "My philosophy, like color television, is all there in black and white"

    by LionelEHutz on Mon Feb 21, 2005 at 09:25:10 AM PST

  •  Un-fucking believable (3.80)
    That can't be a correct reading of the events... that is to insane even for the,.

    You know I thought I could no longer be shocked, yet here I am again, gob-smacked once again by the 100% un-American, insane, immoral and abjectly unprincipled behavior of the BushCp. crew.

    Is this an attempt to poison the well for liberals to want to turn against the concept of Gov.?

    cheers,

    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Mon Feb 21, 2005 at 09:25:24 AM PST

  •  They honestly believe that they are above the law (4.00)
    Giving these people a 2d term was like pouring gasoline on a fire.  It's a shame that Hunter S. Thompson just died, as he was one of the few journalists who understood these people and what they were about.  I hope to God that Sy Hersh remains in good health for at least 4 more years.

    Some men see things as they are and ask why. I see things that never were and ask why not?

    by RFK Lives on Mon Feb 21, 2005 at 09:26:21 AM PST

    •  Dr Thompson (none)
      I've been trying to understand (yeah right) why Hunter would have shot himself since last evening.  I guess he got a heads-up on this absurb legal nonsense .... 'when it gets too weird...' Hunter's always original viewpoint on the process of government will be missed.
  •  This may be the most ridiculous statement ever (none)
    But then, consider the basic underlying principle of this administration.

    We say, therefore it is, and noone should ever contest what we say.

    In reality, someone at the Justice department is aware that their legal arguement has no footing in law, and best just to keep it secret.

    "Immune from debate" includes not just the legal arguement, but anything they say.

    You know, sometimes this administration still surprises me.  

    Of course next will be announcing the outcomes of the 2006 elections in September of that year.

    But they cannot announce how they came up with those results, because it should be beyond debate.

    Bush, so incompetent, he can't even do the wrong things right.

    by JAPA21 on Mon Feb 21, 2005 at 09:27:00 AM PST

  •  It is only a matter of time (4.00)
    before they deploy this shit against us; we are "traitors" after all.

    Be afraid, very afraid and then organize; we are in for a very bumpy ride folks.

    •  It's just like Animal House ... (none)
      President Bush is Dean Wormer and the rest of us are all on Double-Secret Probabtion ...

      There is nothing more helpless or irresponsible than a man in the depths of an ether binge.

  •  i would like to know why (3.50)
    the good citizens of this country aren't storming the white house with rakes and hoes...with the checks and balances system effectively nullified and the press a captive of the same big money powers that keep the government in power, why aren't we sending the bastards packing...? maybe we should take a page from the recent shifts to populism and social responsibility in argentina, brazil, and venezuela... but, wait a minute... we're supposed to LEAD, not FOLLOW... silly me...!
    •  You answered your own question: (none)
      the press a captive of the same big money powers that keep the government in power. That's it in a nutshell! We may have to resort to running ads in any big newspaper that will accept them, if there are any!

      I am not a crook!

    •  Rakes and Hoes (none)
      Well...if you are being literal, it is clear that just sidearms are enough to deal with rakes and hoes.

      And if you are not being literal, what exactly do you propose? Ukrainian style street protest? Kerry is no Yuschenko. It takes leadership willing to bet everything. It takes a mindset in the people that is not framed only by fear, and the addiction to immediate comfort.

      The Vote. If we were to focus on ONE THING, it should be taking back the voting system. Once that treasured priviledge is stolen...

      "Big Darkness, soon come. Take my word for it." - H.S. Thompson

      Good men through the ages, tryin' to find the sun, still I wonder, still I wonder, who'll stop the rain? -J. Fogarty

      by RichRandal on Mon Feb 21, 2005 at 08:47:07 PM PST

      [ Parent ]

      •  "rakes and hoes" is (none)
        a metaphorical allusion to the french revolution and the storming of the bastille... and, yes, i believe that "big darkness, soon come..." what i propose is to seize on the very premise upon which this country was founded as stated so eloquently in the declaration of independence... does this mean we should consider taking up arms against our own government...? i would hope not... but we surely cannot allow things to continue as they are and remain citizens of good conscience...

        -------------

        "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the the Consent of the Governed, that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. . . ."

        Author: Thomas Jefferson

  •  The guy in question (4.00)
    is a U.S. citizen and he has been held for 20 months without being charged for a crime.

    This is tyrannical. No government should be allowed to lock up its citizens without either charging them of a crime or giving them a fair trial.

  •  We need to hammer them on this (3.66)
    This is something that, unfortunately, just hasn't sunk in to most Americans yet.  There has been some coverage in the mainstream media (eg, Amnesty presses EU to warn Bush over human rights, Secret CIA plane shuttles terror suspects and today's column by Bob Herbert [registration required]), but it's never got the attention it deserves.
  •  Right To Confront Accusers (4.00)
    isn't that in the Constitution somewhere?

    You think you can intimidate me? Screw you. Choose your weapon. -- Eliot Spitzer

    by bonddad on Mon Feb 21, 2005 at 09:31:13 AM PST

  •  9/11... (4.00)
    the gift that keeps on giving to Osama Bin Laden.

    Can you imagine how happy he is that he provided the cover these guys use to create their Orwellian society.

     

    •  how ephemeral (none)
      were those early days after 9/11, when we were so stunned, but still humane, emotionally open and raw, in pain but also more aware of what life really means, or should mean.

      How soon after that precious, sad time, this nation rushed headlong into self-immolation.

      we were afraid that our darker natures might win the day... and we were right.

      Fascism: it's the new black.

      by marjo on Mon Feb 21, 2005 at 11:53:58 AM PST

      [ Parent ]

      •  The early morning of and the day after 9/11 (none)
        Hunter S. Thompson wrote this:

        The towers are gone now, reduced to bloody rubble, along with all hopes for Peace in Our Time, in the United States or any other country. Make no mistake about it: We are At War now -- with somebody -- and we will stay At War with that mysterious Enemy for the rest of our lives.

        It will be a Religious War, a sort of Christian Jihad, fueled by religious hatred and led by merciless fanatics on both sides. It will be guerilla warfare on a global scale, with no front lines and no identifiable enemy.

        This is going to be a very expensive war, and Victory is not guaranteed -- for anyone, and certainly not for anyone as baffled as George W. Bush. All he knows is that his father started the war a long time ago, and that he, the goofy child-President, has been chosen by Fate and the global Oil industry to finish it Now. He will declare a National Security Emergency and clamp down Hard on Everybody, no matter where they live or why. If the guilty won't hold up their hands and confess, he and the Generals will ferret them out by force.

        Amazing. The entire post from that particular "Hey Rube" column is here.

        Say what you will, the man had a mind that could focus like a laser and cut right through to the truth.

        R

        Teeth like baseballs, eyes like jellied fire

    •  Osama said he wanted to bankrupt (none)
      America. I didn't know he meant morally.
    •  asdf (none)
      Bin Laden said that he was going to make America a living hell.  He has been very successful so far.
  •  Secret Laws=Secret Police (3.66)
    Soon any hint of dissent, will have you locked up. I will put away my tin-foil hat, when civil liberties matter to the government again. Hopefully in 1 years and counting we will be able to take our country back.
  •  Diplock Courts n/t (none)

    "If you aren't completely appalled, then you haven't been paying attention." November 2004 Update: You obviously haven't been paying attention.

    by Savage on Mon Feb 21, 2005 at 09:32:32 AM PST

    •  Diplock Courts (none)
      These were non-jury criminal courts introduced in Northern Ireland as part of the Emergency Powers adopted in 1973. The item linked to below is written by an organisation hostile to the Diplock Courts, but I think it makes clear that the arrangements were never so Kafkaesque as the approach of the Bush administration.

      http://www.caj.org.uk/keydocs/DiplockReview.html

      The present proposals of the British government about terrorism are much less favourable to terror suspects than the Diplock Courts.

      http://politics.guardian.co.uk/attacks/story/0,1320,1419526,00.html

      •  Diplock... (none)
        That's right. The latest proposals of that moronic jerk Charles Clarke (our new Home Secretary) are that he should be allowed to keep people under house arrest with no visitors or access to the phone or Internet simply by signing an order. Said orders will be issued by the government rather than the courts and will not be subject to legal review. Needless to say, many here are not impressed with this idea, including all the judges and lawyers. As the law lord (eq. to a Supreme Court Judge) Lord Hoffman put it when preventing him from jailing people without trial:

        "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these."

  •  We need to start talking about this as... (none)
    ...a gun control issue.

    You own a gun, the Gov. raids your home at night, holds you for 20 months, never charges you with a crime, won't let you speak to a lawyer, and tells the court that even discussing the legal rational about why they are holding you without charging you with a crime, at their discretion (indefinitely of they choose)... is this America...?

    Are you even an American anymore under this administration?

    cheers,

    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Mon Feb 21, 2005 at 09:37:22 AM PST

    •  Nice framing, but (none)
      I'm skeptical how it would play. The response from gun owners might be "you calling me a terrorist"?

      Is it ridiculous to try first to flip the real conspiracy nuts - argue that BushCo is trying to bring World Government to the U.S., by basing arguments on secret international laws.

      •  The response is... (none)
        there is nothing preventing the Gov. now of doing just that.. and not even having to argue the merits of the 2nd amendment in a court of law.

        If you are a check against Gov. power because you own a gun, they can do whatever they want, hold you in a jail cell anywhere in the world, for any reason, never to see a trial, never to get the protection of the 2nd amendment, because even arguing the rational for your detention is now, according the Bush administration, not allowed.

        And ponder this, while I do not own a gun (yet).. who would the Gov. consider more of a threat to their power... me, or your who has a fire-arm?

        So who would this Gov. consider more of a threat and need to be held without being charged with a crime?

        I don't consider you (a gun owner) a terrorist, but objectively, you are more of a threat (fear... i.e. terror) to their control than me.

        cheers,

        Mitch Gore

        Nobody will change America for you, you have to work to make it happen

        by Lestatdelc on Mon Feb 21, 2005 at 09:52:52 AM PST

        [ Parent ]

    •  Thats the point I take from them (none)
      To anyone who wants to see what this cult is capable of, look no further than Iraq.To them, anyone opposing them can be labeled (insurgent,terrorist,traitor,drug dealer ect.) and can be treated any way they see fit.

      I've always beleived the conservative used principled 2nd amendment arguments shrewdly by arguing that it is the last defense against an oppressive government and then pushing legislation  that excludes as many people not like them as possible.

      We are way behind on this issue and need some serious rethinking to be done.The Founders knew how power corrupts and we all all know how they dealt with it.The checks and balances they left behind for us are now broken( or hijacked by traitors of the highest/lowest order),and the people who follow them for the most partisan of reasons,are the ones buying up all the assault weapons, while we didle daddle trying to argue that there is no need for them in this society.

      "In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me -- and by that time there was nobody left to speak up." -Martin Niemöller      

    •  I think the key is in the first 4 words of (none)
      your first full paragraph.  If the tide does not turn in '06, we might all end up needing to own several.  God knows the wingnuts already do.

      "The face of evil is the face of total need." - Wm. Burroughs

      by oblomov on Mon Feb 21, 2005 at 02:13:45 PM PST

      [ Parent ]

  •  Seriously...... (none)
    Why is anyone surprised by this?
    •  I am surprised.. truly (4.00)
      ...since the implications of this are far beyond the pale of any principle of nations ruled by law.

      I am surprised because the Fright-WingTM base has for years railed against fascism over gun-control, yet this should make every NRA member literally shit his or hers pants.

      cheers,

      Mitch Gore

      Nobody will change America for you, you have to work to make it happen

      by Lestatdelc on Mon Feb 21, 2005 at 09:45:36 AM PST

      [ Parent ]

      •  I've been wondering a lot lately (none)
        what the officer corps of the US military is talking about amongst themselves these days. Do the majority of them love the US Constitution. Could be the only thing left that's holding them back.
  •  This is absolutely incredible (none)
    I don't even know what to say or do in reaction, except to be very scared.  How long until they start holding American citizens for things only loosly connected with "terror?"  How long until those citizens conventiently belong to the opposition party?  I don't understand why he is still in office.  Yesterday, my dad told me that we shouldn't have invaded Iraq, and that as a small business owner that is is almost impossible for health insurance.  He than expressed that he wouldn't ever vote for a democrat.  I don't get it at all.

    "I think war is a dangerous place." - George Bush

    by Nameless Soldier on Mon Feb 21, 2005 at 09:39:38 AM PST

  •  It's Been Clear For Some Time (none)
    that they're not using Anglo-American legal history and precedent. They're very, very obviously following a different model.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

    by Gooserock on Mon Feb 21, 2005 at 09:40:27 AM PST

  •  Are we sure (none)
    that they even know about the Constitution?  
  •  Not absurd, but evil. (4.00)
    A species of totalitarianism, where homage is paid to the form of law, while the actual practice perverts and distorts it. The liars of this Administration have not yet completely internalized the dynamic to be found in the show trial, where the guilt of the accused has already been determined and all of the partcipants are merely actors in a drama to which all know, in advance, the outcome. Our would-be totalitarians are still nerving themselves to reach for (or down to) this level, so they must adopt these tortured and hypocritical arguments to justify their totalitarian impulses. Was it not once said that hypocisy is the flattery that is paid to virtue by those who are not virtuous? That they still have the habit of hypocrisy reveals that they still, somewhere deep within themselves, are unwilling to take that final step--at least for the moment. But not long now...
    •  Speaking of totalitarianism (none)
      and "homage" to vs. actual practice of the law I thought this little essay sounded familiar (note: I took editorial liberties updating; reads better in the original German)
      We are an anti-government party that rejects for good reasons the liberal constitution and its democratic institutions. We oppose a fake democracy that treats the intelligent and the foolish, the industrious and the lazy in the same way. We see in the present system of majorities and organized irresponsibility the main cause of our steadily increasing miseries. So why do we want to be in the government?

      We enter the government to arm ourselves with democracy's weapons. If democracy is foolish enough to give us free media passes and salaries, that is its problem. It does not concern us. Any way of bringing about the revolution is fine by us.

      If we succeed in getting majorities of our party's agitators and organizers elected to the House and Senate, the state itself will pay for our fighting organization. That is amusing and entertaining enough to be worth trying. Will we be corrupted by joining government? Not likely. Do you believe that once we march into the meeting of the illustrious Well of the Senate we will propose a toast to Tip O'Neil? Do you think us such miserable revolutionaries that you fear that the thick red carpets and the well upholstered sleeping halls will make us forget our historical mission?

      He who enters politics perishes! Well, that is true if he enters politics to become a polititian. But if he enters with a tough and driving will to carry on an uncompromising battle against the growing corruption of our public life at the hands of liberals, he will not become a politician, rather will remain what he is: a revolutionary.

      The liberals also sit in the House and Senate. No one is naive enough to believe that they want to work seriously and positively. One more thing: If we do not succeed in making our partisans immune to legal prosecution, they will all find themselves behind bars sooner or later. Will that happen if they possess political immunity? Certainly. When democracy is near its end it will resort openly to the terror of an imperialistic presidency that it ordinarily uses covertly. But that will not happen for some time, and in the meanwhile the fighters for our faith will enjoy political immunity long enough to broaden our fighting front such that shutting them up will not be as easy as democracy would like it to be.

      Just as the Soviets used to use the book 1984 as a manual someone has been doing their homework studying these guys and their ability to seize and hold power. Frightening indeed.

      The polls don't tell us how a candidate is doing, they tell us how the media is doing.

      by Thumb on Mon Feb 21, 2005 at 11:11:37 AM PST

      [ Parent ]

      •  The Darkness is here (none)
        H'mm. Do you mean, something like.....erm....all law flows from (help me here!) was it - by any chance -  Der Fürher? That would be Heidigger, 1933.

        Unless I'm mistaken.

        Mind, it's unlikely that I would be, for the Dictionnaire Historique des fascismes et du nazisme; 1992 fell open last night at "Intellectuels et le nazisme" after browsing this thread. I am merely putting the requisite gloss of uncertainty on it in order to avoid the tiresome routine engagement with dozens of Little Eichmans who dislike sunshine and flowers, and prefer the humid shade which prevails under their rock.

        To resume: By degrees it became bourgeois chic and Art-Déco stylish to denigrate, harass and ostracise low-wage-earners and the historicicity of the theoretical framework which had at last bestowed on them, along with political presence and legal representation, the civil right to human existence. There were as always, of course, multitudes of mediocre nutters with no other chance at publication or Tenure, and so the likes of Spengler, Mueller van den Bruck, Jünger ("The domination of Inferiors" 1927) and Hans Grimm (to mention only a few) set the scene for a period of baiting and hounding of genuine intellectuals which resulted in a wave of immigration (Jobs! Jobs! Jobs!), destroyed German literature and culminated in nationwide book burnings.

        The way was then clear for Carl Schmidt to codify ("The State, the Movement, the People"; 1933) the manner in which the new system functioned: "friend/foe" - the opposite of the democratic notion of compromise in which the increasingly popular terrorist philosophy was rooted. He was also one of the first to defend and justify the terrorist nature of the Régime. 1934: Schmidt expressed the quitessence of his long Anti Constitutional battle: The Führer protects the Law. Thus the concept of Law became synonymous with violence. Mass murder was, according to Schmidt, the Führer's "legal privilege"; it was he who alone who "directly created the Law" and who incarnated "the authentic jurisdiction" and "the highest law", personally.

        The nomination of Martin Heidigger as Rector of Friburg U in 1933 created a sensation. He cast aside his professor (Edmund Husserl) - calumnied because of his non-ayran origins - and abdicated his seminal philosophical work to support the Nazi Régime, proclaiming: "Let the rule for your existence be neither ideas nor intellectual theories! The Führer himself, and only the Führer, is [the country's] only reality, today and tomorrow: he is the Law."

  •  I'm stunned (none)
    But shouldn't be. This is just the next logical step in the progression...

    "Blogging doesn't make it so" - Sen. Hayworth (R) AZ 1/6/2005. Oh yeah?

    by bejammin075 on Mon Feb 21, 2005 at 09:43:01 AM PST

  •  This is crazy. (4.00)
    If you want to send words of support to the good people standing up for this detainee's civil rights, here they are:

    Susan G. Lee
    Jonathan L. Stern
    Jonathan S. Martel
    Mara V.J. Senn
    ARNOLD & PORTER LLP
    555 Twelfth Street, NW
    Washington, DC 20004
    (202) 942-5000

    David Cole
    GEORGETOWN UNIVERSITY LAW CENTER
    600 New Jersey Avenue, NW
    Washington, DC 20001
    (202) 662-9078
    Morton Sklar
    Jenny-Brooke Condon

    WORLD ORGANIZATION FOR
    HUMAN RIGHTS USA
    1725 K Street, NW, #610
    Washington, DC 20006
    (202) 296-5702

    •  Also, for those interested, (4.00)
      here is an excerpt from the argument that Ali's counsel have made against this (sorry, but I can't link to the brief found in the Court's database):

      Petitioners reiterate their position, however, as elaborated in their prior pleadings, that due process requires the government to disclose any evidence or arguments it seeks to use against Petitioners to Petitioners, and not merely to cleared counsel. Providing the classified information solely to counsel would not provide Petitioners with a meaningful opportunity to confront either the evidence or the arguments used against them.
    •  And other interesting excerpts from Ali's briefing (4.00)
      in opposition to the government's demand for a discovery stay, in support of which the DOJ filed another classified document while leaking information to the press about the same topics (citations and less interesting paragraphs omitted):

      On Friday, January 28, 2005, one business day before this Court was to decide on the course of the jurisdictional discovery it had previously ordered, the government filed a motion to stay the entry of any discovery order. The entire justification for staying discovery was set forth in a classified document, to which the government offered Petitioners no access or declassified summary. Petitioners are therefore left in the untenable position of being unable to address the merits of the government's motion.  Based on the government's ex parte, in camera submission, this Court postponed any decision on the government's stay motion until at least February 11, 2005, but invited Petitioners to respond to Respondents' motion to the extent that they could.

      The Court directed in mid-December that discovery in this case "will be expeditious."  Despite that explicit directive, the government has resisted discovery for more than seven weeks. First, it requested an extension of time to submit its discovery plan. When it made that request, the government represented that it would seek to allay the Court and Petitioners' concern about the treatment of Ahmed Abu Ali by submitting information to the Court addressing this issue. But to this day, the government has not provided Petitioners with any current information on Mr. Abu Ali's condition. Instead, it has offered only declarations guarded from public disclosure by a protective order (despite knowing that Mr. Abu Ali provided an express waiver to the Privacy Act) that explain why various purported paperwork requirements attributed to the Saudis have kept U.S. consular officers from visiting Mr. Abu Ali since October 2004.

      The government next refused even to negotiate the terms of any discovery, taking the extraordinary position that no discovery whatsoever was warranted, despite this Court's clear order to the contrary. Instead, the government has argued that it should be permitted to file a one-sided secret submission with the Court, essentially allowing it to re-litigate the case on the basis of secret evidence.

      Next, on the eve of the hearing to discuss the parties' proposed discovery plans, the government sought a stay of all discovery.  The government obviously wishes to avoid discovery in this case, and that fact alone is telling. But a stay of discovery would only extend the deprivation of a U.S. citizen's liberty without due process of law. Petitioners can only surmise at what is contained in the secret submission relied upon by the government in support of its Motion because the government continues to refuse to share this information with Petitioners.

      Yet even as the government refused to share the basis for its Motion with Petitioners and their counsel,  government officials felt free to tell the media that it had submitted two demarches to the Saudi Government requesting that it either charge Mr. Abu Ali, or allow the Justice Department to return him home. See Dana Priest & Caryle Murphy, U.S. Asks Saudi Arabia to Indict or Return Terrorism Suspect, Wash. Post, Feb. 3, 2005, at A05.  Specifically, a U.S. official told the Washington Post that the government had hoped the Saudis would find a way to continue to hold Mr. Abu Ali, but was now seeking "to make the civil case go away" in order to avoid having to disclose embarrassing or sensitive information about Mr. Abu Ali's case.

      The government's submissions, therefore, should be seen for what they are: a delay tactic designed to avoid having to disclose embarrassing or unfavorable information that could establish the government's role in Mr. Abu Ali's arrest and detention, and thus establish this Court's habeas jurisdiction. These tactics are certainly no basis for a stay of the Court's prior order. Every day is precious to Mr. Abu Ali and his family, and the Court should not allow further delay of expeditious discovery based on the last-minute maneuvering of the
      government.

      In addition to offering the Court secret grounds for staying discovery, the government seeks to re-litigate the Court's discovery order by arguing that any such order would "threaten" to encroach on the separation of powers.  Neither of the two cases cited by the government, however, supports its attempt to evade the discovery ordered by this Court.  The government principally relies on Cheney v. U.S. Dist. Court for Dist. of Columbia, 124 S.Ct. 2576 (2004), which held that the Vice President had a separation-of powers basis for opposing discovery in connection with a lawsuit seeking information about an energy advisory committee he chaired.

      The government has repeatedly and consistently tried to litigate this case in secret.  It submitted secret evidence relating to petitioners' motion for a preliminary injunction.  It submitted secret evidence again in seeking an extension of time, and yet again in responding to Petitioners' motion for initial disclosure. It then tried to evade the Court's order for discovery by proposing that discovery consist entirely of a unilaterally selected, classified ex parte, in camera submission by the government. It is now trying to stay discovery based on secret evidence. As this Court acknowledged at the January 31 hearing, the Petitioners' lack of access to the classified information submitted by the government puts them in the impossible position of trying to respond to arguments they have not heard. The proper way to remedy this problem is simply to prevent the government from relying on information that Petitioners are not able to review.  At a minimum, if the Court determines that classified information may be considered at all, the Court should allow Petitioners' counsel access to the classified documents. In no event should the Court grant the stay on the basis of secret evidence, without allowing Petitioners or their counsel to contest this evidence.

      Indeed, the government's insistence that the secret information it has filed must be kept from Petitioners has been undermined by its own recent behavior. As noted above, even as the government has employed a cloak of secrecy to try to hamstring the Petitioners' habeas case, it has felt free to leak secret information to the media, no doubt in an effort to gain an advantage in the court of public opinion. The Court should not allow the government to hide information crucial to Mr. Abu Ali's case from Petitioners, while simultaneously seeking to manipulate public opinion by leaking information to the press.

      For the reasons set forth in Petitioner's January 28 filing the Court should not permit the government to rely on secret evidence at all. Although at the hearing the Court noted D.C. Circuit precedent that has allowed consideration of ex parte in camera information, as the Court itself acknowledged, none of these cases involved the liberty of a United States citizen. In fact, we are aware of no case, and the government has cited none, in which a Court has allowed the government to rely on evidence submitted ex parte and in camera when a U.S. citizen's physical liberty is at stake.

      •  Wouldn't You Just LOVE To Be the Author? (none)
        It doesn't get any better than this -- I would just love to have been this attorney crafting these very careful words (probably in my bathtub actually, which is where I do my best work) to address this surreal situation.  

        But seriously, this attorney did a VERY good job of holding in the rhetoric and just letting the fact do the argument for him/her.  VERY good advocacy, and something he/she should be VERY proud of.

        Fuzzy only works for pets.

        by NotFuzzy on Mon Feb 21, 2005 at 01:58:31 PM PST

        [ Parent ]

      •  For the sake of us non-lawyers: (none)
        On the face of it, this sounds like a scenario of contempt of court, contempt of due process, contempt of law, contempt of the Constitution, and certainly contempt of common courtesy and etiquette, all committed by our own government's agents. Isn't any of this punishable by law, even if the perpetrators are G-men? (This said expressly acknowledging that we're talking about Washington, not Moskow.)
        •  It takes an act of extreme disrespect (none)
          to bring on contempt of court sanctions, typically after disobeying several specific court orders.  It does not seem that this happened here.  

          However, sanctions can also result from a patently frivolous argument (usually in the form of paying the other side's attorneys' fees incurred in responding to that frivolous argument, but possibly ranging up to dismissal of your claims/defenses in the case).  While I think anyone but the DOJ would probably need to at least fear sanctions here, my guess is that there will be no such result.  However, this is as frivolous an argument as I've seen in a while . . .  that the other side is not entitled to know what arguments are being made against them.

          Don't know if this answers your question . . . feel free to shout out if you want to know more!

          •  My question is answered enough (none)
            to know one thing: the government is once more taking contemptuous dalliance with our civil liberties, and will get away with it, up to a point. It's up to us, all of us, to do what we can to ensure that that point is within the limits deemed acceptable by our Constitution and Bill of Rights. I'm embarrassed to admit that it only just now dawned on me that one of the most meaningful things I, personally, can do in this regard is to join and support the ACLU. I can't believe that I've let almost my whole life pass before I thought to do this, despite my long-standing knowledge of and agreement with the ACLU's mission and function. Perhaps I thought they live on air, or something equally stupid. I've just joined, with my whole family, and would urge all who read this to do the same. At least check out their site: ACLU.

            Thanks for your response.

            The Fish Stinks from the Head Down - Impeach Bush!

    •  Here are the DOJ lawyers who are (none)
      working on this . . . feel free to tell them how you feel regarding their trampling of civil liberties:

      Ori Lev
      UNITED STATES DEPARTMENT OF JUSTICE
      P.O. Box 883
      Washington, DC 20044
      (202) 514-2395
      (202) 318-7589 (fax)
      ori.lev@usdoj.gov

      Judry Laeb Subar
      U.S. Department of Justice
      P.O. Box 833
      Federal Programs Branch-Civil Division
      Washington, DC 20044
      202-514-3969
      (202) 616-8470 (fax)
      judry.subar@usdoj.gov

  •  I find myself (4.00)
    wondering where that RFTR (running for the right) guy is on this.

    Hows that "moderating the administration from within the party" thing working out for you....

    what would Kerry possibly have done that you fear more than this kind of bullshit RFTR?

    I simple don't understand anyone - including my family members - who voted for this.  Did you really not see this coming?

    So a given person is "conservative" - fine.   I was pretty sure that conservatives valued fiscal responsibility and rule of law.

    What about the administration has ever been "conservative?"
     It is a orgy of wretched Imperial excess.  They've taken profiteering to new levels. It is using both the theocrats and the conservatives in ways that would be funny if not so dangerous to our nation and our world.

    I pray we survive it as a nation.  Just as I feel a great responsibility, as a Christian - to stand up to  Dobson and Falwell's misuse of religion - I think anyone who calls themselves a true conservative should be on the freaking front lines against this monstrosity - not "running to the right"

    there will be time for that later - right now our way of life truly is threatened - and it's by the guy you voted for.

    I support Soulforce - seeking Justice for God's GLBT children. Please join us.

    by its simple IF you ignore the complexity on Mon Feb 21, 2005 at 09:50:26 AM PST

  •  Ok, WTF? (3.66)
    A secret legal argument? Be wery, wery quiet, I hunting wabbits, I mean terrorist???

    Note to GWB, numbers don't lie, unless you lie about the numbers.

    by Ralfast on Mon Feb 21, 2005 at 09:50:59 AM PST

  •  And the Defense argues that... (4.00)
    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime,
    unless on a presentment or indictment of a Grand Jury, except in cases arising
    in the land or naval forces, or in the Militia, when in actual service in time
    of War or public danger;nor shall any person be subject for the same offense
    to be twice put in jeopardy of life or limb; nor shall be compelled in any
    criminal case to be a witness against himself, nor be deprived of life,
    liberty, or property, without due process of law; nor shall private property be
    taken for public use, without just compensation.

    Amendment VI
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and
    public trial, by an impartial jury of the State and district wherein the crime
    shall have been committed, which district shall have been previously
    ascertained by law, and to be informed of the nature and cause of the
    accusation; to be confronted with the witnesses against him; to have compulsory
    process for obtaining witnesses in his favor, and to have the Assistance of
    Counsel for his defence.

    If I'm reading the same constitution they are, it seems that there are rights regardeless of whether the case is under Federal or State jurisdiction. The only exemption is for military service - where personnel can be tried under the UCMJ.

    Am I missing something? Is there more than one Constitution or Bill of Rights? This seems pretty clear cut to me.

    •  That is why they are not charing them with crimes (none)
      Just holding them in prison indefinitely. Thy are doing a direct end-run around the entire judicial branch and the law.

      This is structured so that this applies in a criminal proceeding. They are not been bothering with that, and going directly to gulags without criminal proceedings.

      Any person in the military should immediately move to remove this administration. They are sworn to protect the Constitution from all enemies foreign and domestic and this is the direct destruction of its core,

      (I know, never going to happen, but that is because of dishonesty and cowardice)

      cheers,

      Mitch Gore

      Nobody will change America for you, you have to work to make it happen

      by Lestatdelc on Mon Feb 21, 2005 at 10:20:11 AM PST

      [ Parent ]

      •  yes, it is time to take action (none)
        when is too late too late?

        when do we as Americans understand that our freedoms  the Right wing trumpets so loudly were built on the blood sweat tears and deaths of "terrorists" fighting a corrupt and authoritarian English monarchy.

        will it take another Revolution? a Civil War?  if we don't act soon the only thing that will keep the march towards a complete totalitarian system will be watching our loved ones locked up and people dying in the fight against the this quickening perversion of American tradition.

    •  Constitution? Bill of Rights? (none)
      Come on, that ol' thing?

      Fascism: it's the new black.

      by marjo on Mon Feb 21, 2005 at 11:44:25 AM PST

      [ Parent ]

  •  Lets call it (3.83)
    The Abracadabra argument. This man is guilty because Abracadabra!

    Why bother with evidence and arguments, when magic words are so much more cost effective?

  •  Absurd (none)
    isn't strong enough, what this admin and their minions are doing is scary, very scary.
    PEACE!
  •  Read it (none)
    know it.

    while we still can....

    http://www.house.gov/Constitution/Constitution.html

    I support Soulforce - seeking Justice for God's GLBT children. Please join us.

    by its simple IF you ignore the complexity on Mon Feb 21, 2005 at 10:14:00 AM PST

  •  Please God (none)
    tell me that that is from the Onion.
  •  This isn't even medieval.... (3.87)
    Didn't we settle some of these issues back in 1215, with King John?

    From the Magna Charta:

    1. In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

    2. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

    3. To no one will we sell, to no one deny or delay right or justice.

    It makes the complaint that we're going back to the Dark Ages painfully accurate.

    "Salvation is by way of the truth, not by way of the fatherland" -- Chaadaev

    by sagesource on Mon Feb 21, 2005 at 10:25:47 AM PST

  •  I think it just may be time... (none)
    for the anti-gun members of the progressive community to suspend their agenda for the duration of the building national emergency.

    Not to sound tinfoily or anything, but...  

    We do read what the supporters of this administration write here on the net.. and they consider each and everyone of us traitors.  The accuse our leaders of committing treason a whole raft of other slurs and slanders.

    And now they are establishing THIS abomination?

    Do you think your average freeper would even clear their throat let alone say anything if they started round liberals up and charging them with treason?  Or do you think deep down in your gut that they would be glad to see it?

    Yeah it may be time to start thinking about a plan "B".

    •  I favor arming too (none)
      I can't remember when it first occurred to me, but I also think it would be a good idea for "liberals" and "progressives" to own firearms at this point in history.

      It would be a forceful statement.

      Bloggin Blagojevich's Blunders: do you want to see Roddy B challenged in the Dem Primary?

      by Carl Nyberg on Mon Feb 21, 2005 at 11:07:41 AM PST

      [ Parent ]

      •  it really hit home on.. (none)
        November 5 or 6.

        It is now time to arm BEFORE they have gotten their act together in regards to holding any US citizen for as long as they like.

        By the time it is clear that they are going to really go for it, it will be to late.  Do it now, don't let anyone know that you have and pray that you will never have to use it.

        But I hate to break to everyone, but we are building up to a civil war.  And as much jawin' as we do, as much investigating that we do, and as much yelling as we do is not guarenteed to avoid it.

        All you have to do is read the posts on free republic and the other blogs of that side and you can see the venom and the hate drip from almost every word.  Listen to the tone of it and realize that they are not joking when they say the things that they do.

        The other guys do not mean us well, and in far to many cases no longer consider us their fellow countrymen but rather a cancer that needs to be excised to save the body of the State.

        It is time to take precautions.  As sad and ugly as that may be to some.

        Read a great phrase that covers this and forgive me I may butcher it in the retelling:

        There are a number of boxes that are used in the defense of liberty:  Soap, ballot, jury, ballot, and ammo.  Use in that order.

        •  We're considered treasonous... (none)
          ... just for dissenting from GOP policy.  We were right when we told them there were no WMDs ... and they STILL consider us traitors.

          Hell, they're now going after the old people (AARP) for not wanting to privatize Social Security.

          It's not going to end peacefully.

    •  Too late... (none)
      "Plan B", "Plan B"...


      You should have implimented that in 2000, after Plan A failed.  It is far too late now.

      Truckle the Uncivil, Nullus Anxietas Sanguinae

      by Truckle on Mon Feb 21, 2005 at 03:55:06 PM PST

      [ Parent ]

    •  Not even the intelligence (none)
      to realize that 95 out of every 100 of them are going to end up 100% in the same slave boat as every surviving "liberal."
  •  Yikes! Not just Jose Padilla. (none)
    I thought that Jose Padilla was the only US citizen being detained indefinitely without charges, hearing, or access to counsel and that his was the Justice Department's test case for the elimination of due process for citizens in those cases that the government designates, for whatever reason, as  "terror" cases.

    Now I wonder how many American citizens are languishing in our government's gulag.  

    I suspect that their "secret" theory is that the executive branch has unrestrained power to declare any person, citizen or not, as an unlawful combatant in the war on terror and use any method they choose to extract information from him/her, even when there is no evidentiary basis whatsoever for the detention.

  •  This is all just a simple mistake! (3.83)
    So, please, just ease up on the administration.

    Clearly, they've come to understand that "CONstitution" means being against the constitution.

    Being for it, is therefore "PROstitution", which would also explain that whole Jeff Gannon affair.

    So, they're doing the right thing in their minds.

  •  This is far more than just a juicy morsel (4.00)
    we at Kos can drool over. Our Administration and its departments are behaving more and more like all the totalitarian regimes in history and in literature which we in America have always held up as negative examples - things which should not happen, and could NEVER happen in America. Our current Administration feels they are the law unto themselves, answerable to no one, certainly not the populace, and denounce any objection as unpatriotic and treasonous. Nazi Germany, the U.S.S.R., China, Castro's Cuba, Saddam's Iraq, Iran, Jonestown - and, of course, 1984 and Fahrenheit 451 - are the kinds of things we all grew up hating and fearing, thankful to be living in another place and another time. And now it's happening here, under the direction of the United States Department of Justice, and it's all but ignored.

    Sure, this gets prime billing on Kos, but it lands on page A26 of the Washington Post. Page A26!!! Where's the hue and cry? How could this happen here, in the United States? And how, if it happened here, could it not be the immediate headline of every newspaper in the country? The Post titled its story "Injustice, in Secret". Something is very seriously going wrong, when "Injustice, in Secret", remains a kind of semi-secret ho-hum affair. The problem's not just the Post's, either, not by a long shot. It's all over. Homeland Security? The fact that it's using something called the Patriot Act (talk about doublespeak) to justify its actions, actions which would cheer the hearts of every Gestapo officer (Ret.), is occasionally fretted about in the "fringe press", The Onion, and on late-night talk shows, but it's being milked for its entertainment value rather than taken seriously and fought. Even her, on Kos, it's labeled "absurd", rather than denounced as vile and venal. What the hell is happening to our country, and to our countrymen? Have we all been struck dumb? Is The Wave actually becoming reality? Where are we headed?

  •  Advertisement? (none)
    Wait a second.

    This may very well be true - but what is quoted above seems to be a paid advertisement, an opinion piece, NOT a news article.  Where's the byline?  Why does it say "advertisement" on the upper right corner?  Who produced this piece of "news"?  

    I don't doubt Our Dear Leader is capable of such treachery but really where is this thing really coming from?

  •  Animal House Jurisprudence (none)
    Is this administration seriously trying to assert their authority to put US citizens on 'Double Secret Probation'?  
  •  asdf (none)
    My head just exploded.

    Can I say that, or is it a secret?

  •  I Believe The Correct Term Is Kafkaesque (none)
    This is really something that we should pass on to all our lawyer friends.
  •  Truly, we have gone through the looking glass now (none)
    I just can't decide if The Red Queen or The Mad Hatter is in charge.

    I do know who the Cheshire Karl is though.

    Resistance to tyranny is obedience to God.-Thomas Jefferson
    We are the resistance.

    by boadicea on Mon Feb 21, 2005 at 07:40:51 PM PST

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