12 March 2006

Be Afraid

In all criminal prosecutions, the accused shall enjoy a right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

6th Amendment, United States Constitution (emphasis added).

Cases in the United States criminal courts aren't supposed to involve secret orders based on secret evidence which the defense is not given an opportunity to challenge:

A federal judge issued a highly unusual classified ruling yesterday, denying a motion for dismissal of a case against two leaders of an Albany mosque who are accused of laundering money in a federal terrorism sting operation.

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way. . . . The classified order by Judge Thomas J. McAvoy of United States District Court for the Northern District of New York came only a few hours after the government filed its own classified documents to the judge. Prosecutors were responding to a motion filed on Jan. 20 by Mr. Aref's lawyer, Terence L. Kindlon.

The prosecutors asked the judge to review their papers in his chambers without making them public or showing them to the defense. At midafternoon the judge issued a document announcing that he had entered the classified order denying Mr. Kindlon's request. . . . As of late yesterday, Mr. Kindlon, even though he has a federal security clearance to represent Mr. Aref in the trial, had not been able to see the substance of the ruling. . . . In his motion, Mr. Kindlon cited an article in The New York Times on Jan. 17 that reported that "different officials agree" that the security agency's program had "played a role" in the arrest of Mr. Aref and Mr. Hossain. Mr. Hossain's lawyer, Kevin A. Luibrand, joined the request to dismiss the case.

Mr. Kindlon asked that all evidence in the case stemming from N.S.A. wiretaps be given to the defense. He argued that the program was unconstitutional and so the evidence should be suppressed.

I cannot conceive of any circumstance in which the court of action taken by the prosecution and the judge in this action could possibly constitutional. If an unlawful wiretap is the basis of the prosecution, the only lawful course of action is to grant the motion to suppress evidence related to that wiretap. If the prosecution is based on a lawful wiretap, the judge should, at least, issue a rule available only to the defense counsel which states that the motion is denied because a lawful warrant was issued for the wiretap and that the wiretap warrant itself cannot be disclosed because it contains information pertinent to third parties which remains classified for good cause. If the defense is being kept out of the loop because the defense lawyer is suspected of being part of the plot, the government should arrest the defense lawyer or move to disqualify him.

This seems like a good moment for either an interlocutory appeal, or a mandamus motion directed at the judge and prosecution in a higher court. For the case to proceed based on a secret order based on secret evidence is to make a mockery of our legal system.

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