When Judge King did not dismiss Al Haramain’s case, the Bush Administration appealed. Along with public filings to the federal appeals court in San Francisco, government lawyers included a set of secret arguments that Eisenberg was not allowed to see. Based on his knowledge of the document, Eisenberg decided to guess at these arguments, and counter them.
Because the document was still classified, anything Eisenberg wrote about its contents would become “derivatively classified,” so he was obliged to write his brief under supervision—not of the court but of the Litigation Security Section of the Justice Department, his adversary. A security officer, Erin Hogarty, explained the special procedures for the drafting: it must take place at the department’s offices in San Francisco; Eisenberg could bring no notes with him, and must use a government computer. Hogarty also said that Steven Goldberg, one of Eisenberg’s colleagues, could join him but that Tom Nelson, another lawyer for Al Haramain, could not. According to Eisenberg, Hogarty later told him that the order about Nelson came directly from one of the government lawyers working on the case.
Link Posted by Tim at April 26, 2008 09:58 PM | TrackBack