Secret Court Rulings: Advancing the End of Democracy
Friday May 5, 2006
Do we really live in a free, liberal democracy when the courts can issue secret rulings based upon secret evidence which only the judge and prosecution can see — rulings and evidence which defense counsel are denied all access to? This isn't compatible with constitutional protections of a fair trial, and if they can be so easily ignored the rest of our rights don't seem to matter much.
Shayana Kadidal writes:
It’s not unprecedented for courts to insist that the most sensitive government secrets be kept from the public, viewed only by the lawyers for both sides in the case. At times courts have even insisted that lawyers suing the government get security clearance before handling such information. But what’s happening in the Oregon case and elsewhere is unique in the judicial history of the Republic: in every case challenging NSA surveillance, the government is filing briefs and evidence that it says are so secret they can’t even be seen by the lawyers for the other side. And courts are buying the argument, even making rulings based on these filings where the other side has never had a chance to read them and make counterarguments. [...]
The most mind-blowing example comes from Albany, New York, where two men (Yassin Aref and Mohammad Hossain) are accused of laundering money for terrorists. In that case, the defendants filed a motion asking whether any evidence against them came from the NSA program. Despite the fact that their lawyers had security clearance, there were nineteen secret communications between the government’s lawyers and the court which the defense lawyers never saw. The punch line: the court rejected the motion to find out whether the NSA illegally spied on defendants, and classified its own ruling, essentially issuing a secret opinion in a criminal trial.
If the courts can legitimately issue secret rulings which cannot even be examined, much less challenged, by the defense, then what’s the point of having a court trial at all? This is an almost unprecedented abuse of power; unfortunately, abusing power is not unprecedented with the Bush administration. These actions are not consistent with liberty or democracy, but they are consistent with an attempt to grab and exercise power.
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Comments
Let us allow that there is a legitimate state interest in keeping some information as secret as possible. Before World War II, the “Purple” intercepts were known by less than a dozen people — other than the code breakers themselves.
In a case like this, where the information is not to be given to the defendant’s lawyers, that a pool of special lawyers be found to represent deendents in such cases and that a lawyer be drawn from this pool for each defendent, and that lawyer (like a public defender) be given the task of arguing on behalf of the plaintiff.
I can certainly allow that evidence and rulings may be so sensitive that they can’t be released the general public. There is, however, already a precedent for defense lawyers signing agreements not to reveal sensitive material they are given access to. This is not a new situation, but the decision to keep defense lawyers out of the loop completely is almost unprecedented.
So, we really shouldn’t need to create a special pool of defense lawyers - there already exist rules and procedures that should suffice. Moreover, this would create a problem because it potentially denies a defendant their choice of lawyer. I doubt that it would be constitutional to force defendants to use only a government-approved set of people. What if the defendant chose to represent themselves? What if they were wealthy enough to hire a high-powered team of experts (e.g., O.J. Simpson)?
Actually, there have been times when information was so secret that even the Vice President was not told. The Purple intercepts that I referred to was an example. The atomic bomb was another.
Of course, I do not know what is going on at NSA. However, I can imagine the possibility of information so sensitive to be worth any risk that it be leaked.
It’s probably a good thing to keep secrets from the current vice president since he has been linked to more leaks of classified information than all defense attorneys combined.