SURE WE MAY HAVE DONE WRONG, BUT WE CAN'T LET YOU KNOW

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.