Appellate Practice

Secrecy Shrouds Wiretap Case

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A pending appeal in a wiretaps case is so secret that the lawyer for the plaintiffs wasn’t permitted to see the government’s full brief and had to write his own arguments under the watchful eye of a Justice Department security officer.

Lawyer Jon B. Eisenberg says the government inadvertently disclosed classified documents showing that his clients were illegally wiretapped by the National Security Agency, according to a Sidebar column in the New York Times. His clients are the al-Haramain Islamic Foundation and two of its lawyers.

Eisenberg told reporter Adam Liptak about the secrecy shrouding the case, pending before the 9th U.S. Circuit Court of Appeals.

“Under the auspices and control of my litigation adversaries, at their offices and on their computer, I wrote a brief, of which I was not allowed to keep a copy, responding to arguments which I was not permitted to see, which will be met by a reply which I will not be permitted to see,” Eisenberg said. “I’d say that’s the most bizarre brief-writing experience of my career.”

The government contends the case must be dismissed. “Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged,” the government wrote in a public version of its brief.

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