Appellate Practice

Secret-Case Strategy: Guess US Argument

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In 27 years of practice, Jon Eisenberg has never had a more difficult case than Al-Haramain Islamic Foundation v. George W. Bush. One reason why is the extraordinary secrecy imposed on the litigation process because of terrorism-related national security concerns.

When it came time to file one brief in his client’s suit over alleged illegal government wiretapping, Eisenberg and co-counsel Steve Goldberg reported to the federal courthouse in San Francisco, and were taken to a windowless room in the U.S. Attorney’s Office. After they gave up their cell phones and laptop batteries, they were left alone to write … under the watchful gaze of two government security guards. For three hours, without notes or written materials of any kind except photocopies of the Foreign Intelligence Surveillance Act of 1978, the law that they claim was violated, the two worked on their brief, reports the Los Angeles Times.

Plus, there was one other unusual obstacle—they hadn’t been allowed to see the complete government brief to which they were replying, and had to guess what arguments it made. Three hours later, they finished, and the government filed their brief for them. Eisenberg and Goldberg weren’t allowed to keep a copy. Eisenberg said he prepared for the brief-writing session by thinking about the arguments he thought the United States might have made and then making—and memorizing—notes about what he wanted to say in response.

Asked if he’d ever done this before, Eisenberg replied: “Of course not. Under any other circumstances, that would be malpractice.” An oral argument is scheduled in the case today, before the 9th U.S. Circuit Court of Appeals in San Francisco.

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