Saturday, November 17, 2007

If you want me to keep your little secret

Joseph Heller wrote a great novel called Catch-22, which describes a paradox of logic:
Catch-22 is a term coined by Joseph Heller in his novel Catch-22, describing a paradox in a law, regulation or practice in which one is a victim regardless of the choice one makes[1]. In probability theory, it refers a situation similar to Heads I win, tails you lose. A familiar example of this circumstance occurs in the context of job searching. In moving from school to a career, one may encounter a Catch-22 where one cannot get a job without work experience, but one cannot gain experience without a job. Catch-22 situations are also sometimes called the chicken or the egg problems.

Of course, that never happens in real life. Except when it does, and like in the book, there ain't nothin' you can do about it:
A federal appeals court dealt a near-fatal blow Friday to an Islamic charity's lawsuit alleging it was illegally wiretapped by federal investigators, saying that a key piece of evidence the charity planned to use is a protected state secret.

The 9th U.S. Circuit Court of Appeals ruled unanimously that a top secret call log accidentally turned over to the now-defunct U.S. arm of the Al-Haramain Islamic Foundation's lawyers by the U.S. Treasury Department can't be used as evidence.

Al-Haramain, which was labeled by the U.S. government as a terrorist organization, alleged it had been illegally wiretapped by the Bush administration without a warrant. But without the document, the court said, the foundation has little proof it was wiretapped.

And the real Catch-22 in this case?
The charity's lawyers voluntarily turned over the document to FBI agents after it was given to them. But a lower court ruled that the lawyers couldn't use the actual document to support their lawsuit but could use their memories of its contents to go forward.

Got that? The government gave them the document, the charity's lawyers "did the right thing" and gave it back. And now they can't use it to prove their innocence!

FindLaw has more details:
The decision, which reversed a lower court ruling, was a victory for the White House, but it didn't entirely put the issue to rest. The judges sent the case to the U.S. District Court in San Francisco to determine whether the law governing the wiretapping of suspected terrorists trumps the state secrets law.

. . . The appellate court's ruling also didn't resolve another lawsuit that more broadly challenges the warrantless wiretapping program.

An attorney for Al-Haramain said he was pleased with the appellate court's ruling because it gave him another chance to bring a lawsuit under a different argument.

"This is back to the drawing board," lawyer John Eisenberg said. "My case is still very much alive and kicking."

Of course, the GWBushCo administration has broadly expanded their interpretation of state secrets law, ruling that exposing illegal activities of the government violated the law, thereby invoking, once again, Catch-22.


(h/t to the vacationing Sailor)