NY Times: 'Bizarre' secrecy in domestic wiretap lawsuits

Published: Thursday January 25, 2007
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Secrecy is at issue in lawsuits opposing domestic wiretapping, The New York Times will report on its front page Friday.

"The Bush administration has employed extraordinary secrecy in defending the National Security Agency's domestic surveillance program from civil lawsuits," writes Adam Liptak for the Times. "Now, though, the procedures used to enforce that secrecy have started to meet significant resistance."

Judges who are soon to hear an appeal in one of the cases "expressed uneasiness about the procedures," Liptak quotes a lawyer who was present as saying.

Some legal scholars and lawyers "say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege," writes Liptak.

The tactics prompted one lawyer to quip, "I went on Amazon and ordered a copy of Kafka's 'The Trial,' because I needed a refresher course in bizarre legal procedures."

Excerpts from the registration-restricted Times article follow...


In ordinary civil suits, the parties' submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.


Some cases challenging the program, which monitored international communications of people in the United States without court approval, have also involved atypical maneuvering. Soon after one suit challenging the program was filed last year in Oregon, Justice Department lawyers threatened to seize an exhibit from the court file.


Nancy S. Marder, a law professor at the Chicago-Kent College of Law and an authority on secrecy in litigation, said the tactics were really extreme and deeply, deeply troubling.

"These are the basics that we take for granted in our court system," Marder said. "You have two parties. You exchange documents. The documents you've seen don't disappear."