Secrecy Hinders Progress of Terrorism Cases (US)

Secrecy Hinders Progress of Terrorism Cases

 
 

The secrecy of the government's counterterrorism efforts is impeding the progress of bringing suspected terrorists to trial. In reports from The New York Times and The Washington Post, secret government programs and secret court procedures have slowed cases involving suspected and convicted terrorists.

 
 

A series of documents detailing secretly conducted arguments, in what may be the first Guantanamo case to go to trial, was released by the government the week of Nov. 26. The New York Times reports that documents reveal that the case of Omar Ahmed Khadr — captured when he was 15 in 2002 and held in Guantanamo as an enemy combatant for allegedly killing a U.S. army medic and planting mines in Afghanistan — has been hindered by debates regarding access to the identity of witnesses.

The military commission trying Khadr issued secret orders preventing his lawyers from learning the names of the witnesses against him. Access to the identity of those who are testifying against a defendant is a fundamental principle of the American legal system. Without such access, an adequate defense cannot be made, and the veracity of such witnesses' statements cannot be tested.

Another case suffering from excessive secrecy involves a Muslim leader convicted on terrorism charges in Fairfax, VA. The case is being hindered due to the government's attempts to implement secret proceedings. Ali al-Timimi is challenging his conviction, arguing that the evidence used against him may have been gathered using the secret National Security Agency's (NSA) Terrorist Surveillance Program (TSP).

The al-Timimi case has been bogged down by a series of secret filings regarding the program submitted by the intelligence community. The government intelligence community is not even allowing the government's prosecutors in the case to see the filings. The Washington Post reports that according to a transcript of the hearing, U.S. District Judge Leonie M. Brinkema said, "I am no longer willing to work under circumstances where both the prosecuting team and defense counsel are not getting any kind of access to these materials."

Judge Brinkema threatened to grant a motion for a new trial if the government intelligence community did not permit the prosecuting and defending counsel to review the secret filings.

In addition to secret filings and secret witnesses and evidence, the government has also used the state secrets privilege in an attempt to dismiss claims against the government on the grounds they involve information which, if revealed, would be dangerous to national security. The states secrets privilege is being invoked in the approximately 50 lawsuits against the government and telecommunications companies alleged to be involved in the NSA's TSP.

In a ruling by the Ninth Circuit Court of Appeals in Al-Haramain Islamic Foundation v. Bush, the court held that a document detailing that a particular organization was targeted by the TSP was a state secret but that the subject matter of the suit itself was not. Because the government has openly admitted the existence of the program, the government cannot claim that TSP is now a state secret and that all lawsuits regarding the program should be dismissed. Sen. Arlen Specter☼ (R-PA) and others are considering curtailing the use of the states secrets privilege.

While many of the cases proceeding in the American justice system and in military commissions involve sensitive matters of national security, the truth-seeking operations of any justice system depend upon a level of openness and transparency. In order to defend against claims or proceed with claims against suspected terrorists, lawyers need access to basic information to make their case. Unfortunately, the present state of the justice system does not ensure this level of transparency.

 
 

Pasted from <http://www.ombwatch.org/article/articleview/4107/1/1?TopicID=1>