Heads I Win, Tails You Lose: Secret Trials and Secret Evidence

JB

The New York Sun reports an amazing showdown now playing out in a federal court in Virginia:

A constitutional clash is looming in a Virginia courtroom after federal prosecutors proposed barring the public from hearing some evidence at the upcoming trial of two former lobbyists for the American Israel Public Affairs Committee [who are accused of conspiring to pass classified information to an Israeli official and to reporters]. Defense lawyers for the two men, Steven Rosen and Keith Weissman, have objected vigorously to the unusual proposal to present secret evidence. Late yesterday afternoon, a consortium of news organizations filed a motion to intervene in the case to restrain any attempt by the government to give the jury access to evidence that the public will not be permitted to examine.
. . . .
A source familiar with the case said the government proposed giving jurors headphones to listen to audio recordings of intercepted and wiretapped phone conversations key to the case. While the defendants and the judge would be able to hear the audio, the press and public would not, the source said.
. . . .
Attorneys not involved in the case said they were perplexed by some aspects of the government's proposal. It was unclear, for instance, what jurors would be told about the classified information, whether they would be sworn to secrecy for life, and whether they would be told of their obligations before the trial begins.

"I have a real problem with that," one defense lawyer, Eugene Fidell, said. "Jurors are not, in fact, privileged characters. They don't have security clearances. … It sounds to me like we're going down the path towards secret trials, which we don't have."

Lawyers for the two ex-lobbyists are expected to argue that special warnings to the jury about keeping evidence in the case secret could undercut the pair's defense, which includes an argument that the information disclosed by the men did not represent a threat to America or a potential boon to a foreign government.

It is worth comparing this trial to the Justice Department's successful attempt to persuade the Fourth Circuit to dismiss the lawsuit of Khalid el-Masri on the grounds that it involved state secrets. El-Masri is a German citizen who was held by the CIA for five months in Afghanistan because of mistaken identity. El-Masri says he was imprisoned, beaten and drugged by the CIA, then dumped in Albania when the CIA discovered that it had the wrong man.

In the AIPAC prosecution the government wants the right to try some of its case in secret on the grounds that evidence necessary to adjudicate the case is secret; in the el-Masri case it sought to avoid trial by claiming that evidence necessary to adjudicate the case is secret. Put another way, the government wants to use the need for secrecy to avoid public scrutiny when it brings suit and avoid public accountability when it is sued.

Certainly the government should be able to protect its secrets. And certainly the need for secrecy must occasionally outweigh other important social values. But the question I am interested in is whether the government should be able to leverage its need to keep things secret to simultaneously give itself an offensive advantage when it prosecutes and a defensive advantage when it seeks to avoid legal accountability for its own misdeeds.

In the el-Masri case, the government argued that even if el-Masri's claims were true, the need to protect government secrets prevented him from going forward to show that the government was responsible for kidnapping and torturing him. But why shouldn't the government's desire to protect secret material also mean that it must forgo some prosecutions it might otherwise wish to bring? (Or, in this case, merely bring a potentially weaker case than it would otherwise bring?) That is to say, if secrecy is the paramount value here, then it should trump both the interest of el-Masri in holding the government officials to account for their alleged illegal behavior and the interest of the government in holding the two AIPAC defendants to account for their alleged illegal behavior.

A familiar danger of excessive government secrecy is that it permits government to avoid accountability for its actions, undermining democracy and rule of law values. Taken together, the AIPAC and el-Masri cases place this familiar danger in a new light. If courts regularly defer to the government's claims of secrecy, the government will have incentives to pursue a heads-I- win-tails-you-lose policy-- stopping investigations into its own misconduct while limiting public scrutiny of its prosecutorial powers.
Posted 4:40 PM by JB [link]