Monday, August 13, 2007


A Case So Shielded One Side Is in the Dark - Jon Eisenberg, a lawyer representing an Islamic charity and other clients suing the US government for illegal surveillance, wrote his appellate brief under Orwellian circumstances. In his words,

"Yesterday, 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."

It's like the poor guy is subject to the Eisenberg uncertainty principle.

If you try the link above you will see that the case is so secret it was moved to Time's select, you can't even read the news story without special clearance. Also note the suspicious absence of pictures.

Similar cases have been dismissed because the plaintiff could not prove surveillance without discovery in the litigation, or claim a specific injury resulting from surveillance. Mr Eisenberg's client is an unusual position, it claims the US Treasury bungled, mistakenly giving the plaintiff a classified document that showed it was under surveillance.. The government's approach is heads I win - if plaintiff doesn't have specific knowledge of illegal surveillance the case must be dismissed, tails you lose - if plaintiff does know about illegal surveillance then the case must still be dismissed because state secrets are privileged and cannot be revealed at trial. The Orwellian brief writing process was an effort to minimize the chance any secret would be disclosed, because the court has not (at least not yet) accepted the "tails you lose" argument. If the government prevails then the executive branch could, in theory, break any law, classify it's actions as secret and avoid any judicial review of those actions.

If only AG Albert Gonzales had been around to help Nixon with Watergate.

Of course 1984 was written by a Brit in Burma inspired by Stalin, and by the British colonial bureaucracy, and the US may still be on the low end of the 1984 scale. In China, Party Animal Hu Jintao is introducing a pilot security program in Shenzhen, a city of 12.4 Million people. Most citizens will be required to carry an ID card with chip carrying data on work history, education, religion, ethnicity, police record, insurance, reproductive history, etc. The same city is installing 20,000 surveillance cameras and sophisticated software to recognize crime suspects and "unusual" activity. Do not fear gentle people of Shenzen, Party Animal just wants to know where you are on Saturday night, you never know when you'll get a last minute invitation - to Rave Gulag. US and European firms are providing software, hardware nce, and financing for the prime Chinese contracto, no one can resist the lure of the massive Chinese market, but these firms may be securing a place at the head of the line in some future walk of shame.

And then there is Burma itself. Myanmar remains one of the most oppressive regimes anywhere, so bleak for so long that it rarely even makes the news. Htein Lin, a Burmese political prisoner who painted surreptitiously on sarongs donated by his fellow prisoners now has an exhibition in London. Lin was sentenced to seven years, although he did nothing - a friend mentioned his name in a letter as a possible recruit for a political organization.

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