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.
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.