Guilty of Insufficient Overreaching

The appeals court represents detainees' one, brief shot at a real legal process -- though just how real remains to be determined. Last week, the wrangling was partly over what material lawyers could examine in representing their clients. The detainees' lawyers are seeking access to all the information the government has collected about the detainees -- not just material selected for presentation to the tribunal.

The government contends that the lawyers need only the material actually shown to the tribunal. No need to look further, the government says, because if there were any "exculpatory" material helpful to the detainees, the rules would have already required that it be turned over.

This is so maddeningly circular, so Catch-22 meets George Orwell, that it provoked an outburst from Chief Judge Douglas Ginsburg, a conservative Reagan appointee. "How can they assert that something is missing if they don't know what's present?" he asked the government's lawyer, Douglas Letter.

"I don't see how there can be any meaningful review," Ginsburg said. "Maybe you can tell me. How we can [have] any meaningful review of the determination if we don't know what we don't know, but you know."

And later, "What you're describing is a complete, a wholesale complete departure from any kind of adversarial system."

"Yes," Letter replied.

It is a terrifying legal worldview that drives a Patrick Philbin out of government, and that leaves a Douglas Ginsburg sputtering in amazement at executive overreaching.

marcusr@washpost.com