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.
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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.
In this case, the liberty of a U.S. citizen is at stake. It is not clear what role the U.S. government played in his arrest, nor that he is innocent. What is clear is that Mr. Abu Ali has been held for 20 months without being charged and that, as Judge Bates wrote in December, his lawyers "have presented some unrebutted evidence that [his] detention is at the behest and ongoing direction of United States officials." It should be unthinkable that the courts would resolve this matter without hearing from both sides on key legal questions. It should have been unthinkable for the government to propose such a step.