Monday, February 04, 2008

We've gotcher eedjits! Eedjits here!!!

Seems there's some controversy over whether we ought to institute "Nash'null Secur'tah Courts" to try the big bad meanies. Prof. Marty Lederman blogs about it over here:
Last Friday, the Washington College of Law at American University convened a day-long conference devoted to recent proposals -- including most prominently that of our new Attorney General -- to create new, special "national security courts" to handle (i) detention decisions; and (ii) criminal trials, with respect to suspected al Qaeda operatives and associates.

One of the organizers of the conference, Steve Vladeck, is absolutely right that the highlight of the day was this informal lunchtime address by Judge Leonie Brinkema of the Eastern District of Virginia, who has presided over several terrorism cases, including the Moussaoui and Al-Timimi cases. Judge Brinkema offered a very compelling case for why we should not move such cases out of our existing federal court system -- for why the tools available to good district judges are more than adequate to handle such cases; why the government itself was largely responsible for the celebrated yet avoidable "problems" in Moussaoui and other cases; and why it would be unwise to establish a specialized national security court, which she said "should send shivers down the spine" of the public (listen to the very end).
I've commented a little on such issues previously, but looks like we have to deal with some newly made-up eedjitcy:

Our favourite RW Wurlitzer pipe "Bart" DePalma comments over on Balkinization:

Judge Brinkema makes a rather strong case that civilian federal courts cannot balance the necessity to classify material and the requirements of the Confrontation Clause and the death penalty sentencing rules in the case of foreign enemy combatants.
Actually, Prof. Lederman says that Brinkema said precisely the opposite. Who ya gonna believe?
1) Judge Brinkema admitted that she was not qualified to make classification determinations, but she pressured the government to reduce and eliminate classifications in order to try the case.
Oh, really? What did she say? Be specific now. But I'd point out that making "classification determinations" is neither high science (see the Reynolds case and my previous post), nor beyond the abilities of a competent jurist. However, making the determination of what should be classified (the "classification determination[s]") is not what the judge needs to do. All they need to do is decide whether -- and how -- one that is properly made will affect the case.
2) When the 4th Circuit reversed her initial rulings on the subject and allowed the government to present redacted summaries of the testimony of other enemy combatants, Judge Brinkema allowed the defense to use any part of the summary it wished, but barred the government from offering what it wanted because the material could not be cross examined in open court and to "even up the playing field."
And the problem here is (outside of "Bart"'s tortured English and unsupported assertions)?
3) DOJ and/or the defense attorneys were constantly leaking the classified information to the Washington Post.
(Unsupported) allegation noted.
4) Judge Brinkema never had to deal with an open trial where the government would have to choose to either disclose classified information or keep the material classified and very possibly allow an al Qaeda terrorist to be acquitted and freed. Rather, the defendants pled.
Here comes the fun. This has already been addressed in the criminal sphere here, from U.S. v. Reynolds, 345 US 1 (1953):
Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.
Reynolds at 12.

It may well be that the Constitutional price for keeping a lid on maladministration misbehavio.... [see previous post] -- ummm, sorry, "state secrets" -- is to let the (alleged) perp walk for the crimes. Yes, it is kind of sh*tty that some court rules mean that even dangerous people (even murderers and such) walk sometimes when the rules have been broken in getting the goods on them. That's the way it is under a 'rule of law'....
5) Finally, Judge Brinkema believes that redacted videotapes would be an effective compromise to bringing in testimony of enemy combatants while keeping classified information (at least what the court considers properly classified information) out.

This would make prosecution extremely difficult. Every jury in the world will wonder what was kept out and every defense attorney worth his or her salt will argue alternative scenarios and imply that the evidence being excluded would prove these alternative stories.
And the problem with this (if it actually occurred) is just what, exactly?...
It is possible that the Court could instruct the jury that she had listened to the testimony and the redacted testimony did not apply to the case. However, that puts the judge in the jury's role of fact finder.
Excluding evidence is not an unknown problem, even if in criminal trials, a little more leeway is given to the introduction of evidence than in a civil case.
All of these problems can be alleviated in a military tribunal where the fact finders can see all the evidence in closed session and both sets of military attorneys can be trusted to handle classified materials without leaking them to the WP.
As I said, already covered in my prior post. When the military is both prosecutor and defence attorney, "Houston, we've got a problem...."


On "Bart"'s item #3, it turns out that Judge Brinkema is of the opinion that the only ones that profited from the leaking of the sealed plea in the Faris plot was the maladministration, and in fact, Judge Brinkema said that the leak of Faris's plea led to Faris stopping his co-operation. That would put the onus here on the DoJ and the maladministration, and if they would leak in such a case for political purposes, they could do the same for their own military "show trials". The people in the gummint that are privy to confidential information is not limited to the military (see, e.g., the noted chickenhawks "Scooter" Libby and Karl Rove).


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