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.

Ahmed Abu Ali was arrested in June 2003 in Saudi Arabia. He and his family
claim the arrest took place at the behest of U.S. officials who, though
unable to bring a case against him, have encouraged the Saudis to keep him
locked up”¦

Since then, the U.S. government has acted to frustrate all reasonable
searches for answers. It has moved to stay discovery based on secret evidence”¦

In this case, the liberty of a U.S. citizen is at stake. It is not clear
what role the U.S. government played in his arrest, nor that he is
innocent. 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


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