Unbelievable. To try and litigate a case under that sort of pressure from opposing counsel blows my mind.

It would be great if the ABA would keep a list of all DOJ Attorneys under the Bush Administration and black ball them after this. But that probably won't happen; Partners at Kirkland, Sidley, Jones Day, Piper, etc. read articles like this and think "Dang, that's some mighty fine adversarial skills theys larnin' under W. Bush's DOJ. We gotta hire us some of that in 2009!"

Can't wait until the "Bob Jones School of Law" model for litigating becomes standard practice in the US.

The Race to the Bottom countinues to pick up speed...

What are the rules for classification? Is there not some body outside of the Executive Branch that can review these things? I understand the need for secrecy, but there needs to be a powerful check on this power because it's obviously and frustratingly easy to abuse.

Can you imagine trying gather and sanitize enough Dubya memorabilia for the Bush Liebrary? In fact, it will be such a liebrary, they may as well call it the Georgy Forgery.

This is one of my favorite terms. I heard it used by a physician warning people against getting full body scans in the hope of preventing cancer. There is the danger of a 'false positive' in doing this. Nothing medically would indicate the presence of a pathology, but the scan may reveal something - some strange, unexplained shadow. Then, all the interventions may actually be worse than the benign peculiarity. This is how I think of your case. This is indeed, ironic to me. I began thinking of false positives in the reverse direction. What happens when 'information mining' turns up something that looks like terrorism, but isn't -- the Hitchockian "innocent man accused"? Look at how much we need fiction to make sense of all of this. Fiction, precedes (structures) knowledge and knowing. Wasn't that what the judge and the attorney were arguing about? Indeed, at the onset the authors say they are looking for fiction to help them make their case against unseen (unheard) arguments. This really isn't hard, because the arguments are hidden in plane sight. I know this as a literature professor. So, let me suggest two or three works. The first is Edgar Allen Poe's "The Purloined Letter." Then you might read Jacques Lacan's analysis of the short story - paying particular attention to his ideas about "anticipated certitude." Then, you might end by reading Jean François Lyotard's book The Differend. He does a brilliant analysis of the role of fiction in prosecution and "political trials." All of this can be solved in we only find the right fictions, the right metaphors (please, no more ticking time bombs - a fiction if there ever was one - and '24'!). Then, the veil will magically drop from the eyes of citizens, judges and politicians. Then, look out!

Oh yeah, through some arm twisting, a little blackmailing, and asking some favors, I have obtained this document. It's not quite what you would expect. Don't care if I'm violating any epsionage laws, so here goes:

Dear Useful Idiots,

Thank you so much in your support of our terrorist front organization. We can always count on a large number of you stupid Americans in helping us use your own Constitution against yourselves. We Middle Easterners are not dumb, in fact we are smarter than the majority of you. Instead of simply using bombs, we know that the REAL American way is the way of courts and laws. Our scholars work day and night looking for any loophole in order to get any legitimate case against us or our friends thrown out on simple technicalities. Our far superior form of law, Sharia, would NEVER allow such injustices. If you were part of an American group working against Islam, your heads would have been chopped off long ago.

Of course Bush knew we were up to no good. Why else would he take such a risk, if it wasn't worth it? Bush rightly knew we were a threat, but we knew the stupid Americans would flub up, and we would come out on top.

But many thanks to you all, for having so much faith in your Constitution that you will even support a group actively trying to destroy you. Our religion is Islam, yours in Constitutionalism. May the fleas of a thousand camels infest you and your family, for the rest of your days.

Sincerely,

Suliman al-Buthe

Ex-Director of al-Haramin Foundation

(Now safe in my Saudi Arabian palace. Come and get me!)

This situation hinges on a fundamentally troubling premise which needs to be challenged for precedent on behalf of a myriad of other cases.

The Bush administration has thrown the label of secret by definition of being a threat to national security to any number of things that would be a hard sell to put realistic logic to. An example would be his military national guard records, embarrassing yes, a threat to national security, no. Financial investigations into malfeasance would have nothing that is a threat to national security even though it's convenient to use that ploy on the grounds that it's military related. It will take an administration with a different outlook than the current one that chooses to flaunt a total disregard for constitutional rights and safeties.

What is such a threat to national security about wiretapping logs? First of all we now know it exists. Secondly the fact it took place has to be acknowledged at the time charges or arrests are made as the result. These actions have to have some legal standing. A person can't be arrested on the grounds wiretaps revealed evidence and then be denied in a lawsuit on the grounds that secret documents are the only proof.

The act of prosecution would demand corroborating evidence that is not secret nor a threat to national security, these documents are part of the record and could be used for any future purpose.

The arbitrary use of the "threat to national security" label will need to have a secret clearance certified board that has the function of reviewing documents in order to determine the validity of the designation. Their ruling would be along the lines of "we see no threat here". The judge presiding over this should have asked if it could be demonstrated that wiretap records could be construed as a national security threat, and if not they would be entered as evidence. There has to be some evidenciary trace of the wiretap program as a necessary check and balance.

By the same logic used by CIA attorneys that it didn't necessarily exist as there are no admissable proofs, the person being charged can't be charged either.

We are going to be aggressively investigating an array of wrongdoing perpetrated by the current administration and there will have to be provisions for using documents that are in no way a threat simply because that is a convenient nullification ploy. This tactic has been repeatedly used to suppress legal issues of all types and has some serious constitutional challenges. The answer may be a board such as a national security threat advisory board that has the final say on that issue.