by TChris

We're all familiar with classified facts and secret warrants, but should there be such a thing as secret legal arguments? The Justice Department thinks so, but the Washington Post argues for transparency in the government's interaction with the legal system.

The question arises from the case of Ahmed Abu Ali, who was arrested in Saudi Arabia. Ali's family believes the United States engineered Ali's arrest and continuing detention. The family brought a lawsuit in federal district court, and the Justice Department moved to dismiss the suit -- but doesn't want to make its reasons public, or even share its theory with the lawyers representing Ali's family.

It has proposed adding to the facts at Judge Bates's disposal by submitting secret evidence that Mr. Abu Ali's attorneys would have no opportunity to challenge. Most recently, it urged that the case be dismissed on the basis, yet again, of secret evidence -- this time supplemented with what a Justice Department lawyer termed "legal argument [that] itself cannot be made public without disclosing the classified information that underlies it."

If lawyers fighting for Ali's freedom had access to the "secret evidence," they might be able to refute it. And if they knew the government's "secret arguments," they might be able to convince the judge that the arguments lacks merit. But if everything is kept secret, neither Ali's lawyers nor the public can act as a check against the administration's lawless behavior. The adversarial system of justice cannot function in Ali's case if the Justice Department gets its way.

In this case, the liberty of a U.S. citizen is at stake. ... What is clear is that Mr. Abu Ali has been held for 20 months without being charged and that, as Judge Bates wrote in December, his lawyers "have presented some unrebutted evidence that [his] detention is at the behest and ongoing direction of United States officials." It should be unthinkable that the courts would resolve this matter without hearing from both sides on key legal questions. It should have been unthinkable for the government to propose such a step.