New Vistas in Government Secrecy

The spectacle of defense attorneys struggling to defend their clients against secret evidence has become a familiar one during the Bush Administration. But it’s a rare occasion when even the prosecutors are cut out of the loop.

That’s what has been happening in the case of Ali al-Timimi, a U.S. citizen who was convicted back in 2005 on terrorism charges. His lawyers are arguing that he was the subject of the administration’s warrantless wiretapping program, and that his constitutional rights were violated. It’s been a messy appeals process, and yesterday, the judge who presided over the case threw up her hands:

The U.S. Court of Appeals for the 4th Circuit sent the case back to [U.S. District Judge Leonie M. Brinkema] last year after Timimi’s attorneys raised the wiretapping argument. That led to a flurry of secret litigation. Yesterday, at a rare open hearing in the case, Brinkema said it was “ludicrous” that even prosecutors had not been allowed to see a series of filings that the intelligence community submitted to the judge.

“I am no longer willing to work under the circumstances where both the prosecuting team and defense counsel are not getting any kind of access to these materials,” Brinkema said, according to a transcript of the hearing. “Frankly, if I can’t get some flexibility on the government’s part, then I’m going to be inclined to grant a motion for a new trial.”