There are few things more maddening in a legal system that is supposed to behave rationally than to know that you are onto something and not be allowed to have it, especially when your adversary has it and won't give it up.
I've had this come up in cases more than once.
In an accusation of child molestation, the law prevented the appointment of a psychiatrist to determine what nefarious influences were working on a child of four who was under the physical and emotional control of the mother who was having an affair with her divorce attorney. After a lengthy criminal law battle including jury trial and a hung jury, I succeeded in having the case dismissed, instead of being retried, but only on condition that my client, the father, not see his daughter while the Family Court entertained the case, which included the appointment of a psychiatrist to examine the child and her parents and others who were close. This took years. Finally he reported that the accusation was groundless, the product of an alienation process by the mother aided by the attorney, who she now married. Great, we get the child back, I thought. She was seven or eight by now. Wrong! The judge ruled that since she'd become comfortable in the home of the mother and the attorney, and would be uncomfortable visiting the father, he should lose all paternal rights including visitation.
Had we been allowed a psychiatric investigation in the beginning we wouldn't have had to undergo a criminal trial with attendant risk.
California Evidence Code 1040-1042 allow the police a privilege against revealing secrets where it is claimed that to do so would harm the government's ability to perform a function, such as detect crime, often narcotics violations. Thus the identity of confidential informants ("snitches") is protected from discovery to defense counsel unless the CI has provided evidence material on guilt or innocence, that is, could exonerate the defendant if the CI recanted under cross-examination, or was shown to be a liar or otherwise not worthy of belief. Without snitches, government would fail.
I see that the notion has now come up before the U.S. Supreme Court in one of the Guantanamo type cases in which we captured a bad guy and didn't bring him to court, but instead put him on the underground merry-go-round called "extraordinary rendition," (rendition meaning to send away someplace), there to be held incommunicado from friends and counsel and tortured until he tells the story his torturers wish him to tell. His torturers are either us or working for us.
So this one suspect sues the U.S.
The U.S. doesn't deny the rendition or the torture, but says, "Hey, we're the governement, we can do whatever we like. We're privileged because we're, well, the Government and why have a government if it can't do what it likes?"
The Court bought this argument because, well, the justices are part of the government. They believe in it. Maybe someone needs to tell the justices that more than power, the government needs reining in.
Oh, but this is a matter of national security.
All the more reason to tightly control the government.
Hitler had death camps in the name of ridding his society of people he blamed for the nation's ills.
How is torturing alleged Al Qaeda members different that this?
Sometimes the justice system doesn't seem very just, especially when an unpopular person seeks justice and is thrown out of court or otherwise effectively delayed, obstructed, or otherwise dealt with like a pariah. Convicted murderers receive better treatment than perceived enemies of the state such as suspected terrorists and alleged child molesters.
The NYT article, by Linda Greenhouse, is below.
Supreme Court Refuses to Hear Torture Appeal
WASHINGTON, Oct. 9 — The Supreme Court on Tuesday refused to hear an appeal filed on behalf of a German citizen of Lebanese descent who claims he was abducted by United States agents and then tortured by them while imprisoned in Afghanistan.
Without comment, the justices let stand an appeals court ruling that the state secrets privilege, a judicially created doctrine that the Bush administration has invoked to win dismissal of lawsuits that touch on issues of national security, protected the government’s actions from court review. In refusing to take up the case, the justices declined a chance to elaborate on the privilege for the first time in more than 50 years.
The case involved Khaled el-Masri, who says he was detained while on vacation in Macedonia in late 2003, transported by the United States to Afghanistan and held there for five months in a secret prison before being taken to Albania and set free, evidently having been mistaken for a terrorism suspect with a similar name.
Mr. Masri says he was tortured while in the prison. After prosecutors in Germany investigated the case, a court there issued arrest warrants in January for 13 agents of the Central Intelligence Agency. The German Parliament is continuing to investigate the episode, which has become a very public example of the United States government’s program of “extraordinary rendition.”
Mr. Masri, represented by the American Civil Liberties Union, brought a lawsuit in federal court against George J. Tenet, director of central intelligence from 1997 to 2004; three private airline companies; and 20 people identified only as John Doe. He sought damages for treatment that he said violated both the Constitution and international law.
Shortly after he filed the lawsuit in December 2005, the government intervened to seek its dismissal under the state secrets privilege, asserting that to have to provide evidence in the case would compromise national security. That argument succeeded in the Federal District Court in Alexandria, Va., which dismissed the case without permitting Mr. Masri’s lawyers to take discovery. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld the dismissal in March.
In their Supreme Court appeal, El-Masri v. United States, No. 06-1613, Mr. Masri’s lawyers argued that these rulings allowed the state secrets doctrine to become “unmoored” from its origins as a rule to be invoked to shield specific evidence in a lawsuit against the government, rather than to dismiss an entire case before any evidence was produced.
The Supreme Court created the doctrine in a 1953 decision, United States v. Reynolds, which began as a lawsuit by survivors of three civilians who had died in the crash of a military aircraft. In pretrial discovery, the plaintiffs sought the official accident report.
But the government, asserting that the report included information about the plane’s secret mission and the equipment that it was testing, refused to reveal it. The Supreme Court upheld the government, ruling that evidence should not be disclosed when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”
Mr. Masri’s lawyers argued that this decision, which the court has occasionally invoked but has not revisited, did not justify dismissing a case before any evidence was requested. Ben Wizner, Mr. Masri’s lawyer at the civil liberties union, said in an interview that the courts had permitted the doctrine to evolve from an evidentiary privilege to a broad grant of immunity, a way for the executive branch to shield itself from judicial scrutiny.
In this case, Solicitor General Paul D. Clement offered to let the justices see, “under appropriate security measures,” the classified declaration that the government filed in the lower courts to support its claim of privilege. The court evidently did not think that step was necessary.
The court will soon have other opportunities to revisit the state secrets issue. Last week the A.C.L.U. filed an appeal that raises the issue as part of a challenge to the National Security Agency’s program of wiretapping without court warrants.
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