We can't have a trial, state secrets would be compromised

Here in the US, when it comes to things like trying suspected terrorists, or trying to determine the legality of a government program, government officials will ask that the case be thrown out because of state secrets.

OK, first off, for government programs, whatever happened to checks and balances? I thought one of the reasons for our court system was to determine which laws/regulations/rules/procedures, etc… were constitutional, and which aren’t. To me, the executive branch being free to do whatever it wants, and telling both Congress and the Supreme Court to buzz off because of state secrets goes against checks and balances.

And as for picking somebody up at an airport, or bank, or wherever; giving them a unique designation which means that our government can basically do whatever they want, for how long they want. Well…words fail me.

So anyway, I thought of a solution that would allow trials, yet keep state secrets, secret. I’m posting this here because I’m sure there will be some dopers who will come along and tell me why I’m wrong.

My solution is, hold the trials using lawyers and judges who have the appropriate security clearance. If involving the plaintiff(s) and/or defendant(s) in the trial would compromise national security, or whatever, then have the trial held in absentia. I think that’s the right legal term.

Yes, it may not be perfect, but at least it would preserve the separation of powers; allow trials to be conducted where they weren’t allowed before, and where they are allowed, but highly questionable, such as allowing coerced testimony, or withholding evidence from the defense, it would allow for fairer trials (as long as the defense attorney was on the defendant’s side, which might be hard to tell if the trial is secret, I know.)

So, anybody disagree with what I said? If so, where am I going wrong?

One problem I see is that the government grants the security clearances, limiting them only to the judges and lawyers friendly to the government.

It all depends on the process we use to bestow a security clearance. If security clearances are handed out by the President, or handed out by minions appointed by the President, then you can be nearly guaranteed that the judge hearing the case is going to be favorably inclined to rule in the President’s favor. Any judge (for instance) likely to rock the boat may be replaced, or may have his security clearance revoked, because the Powers That Be don’t like his political leanings.

Also, judges are typically elected, aren’t they? That basically means you’re electing someone to hold a security clearance. I can imagine some complications there; would you have to do background checks on all the candidates prior to the election? Who does the background checks? Are the background checks also done by appointed minions of the President? What would they say if — as a hypothetical example — Michael Moore ran for judge in Flint, Michigan? Would he pass, or would they say, “Gosh, he’s too liberal, we’ll find some reason to deny his security clearance; too bad, so sad, he’s not eligible to run for judge”? Or would the Administration hand-pick extremely conservative judges that they could give clearances to? Both seem wrong to me: the reason we elect judges is to retain control over the judicial process, right?

Lawyers are already bound by client confidentiality; I’m not sure of the rules of the profession and how they relate to specific details of the cases they work on. Requiring great secrecy might be redundant . . . or it might be essential. Aren’t lawyers also bound by the ethics of the profession to report crimes?

Besides, if a hypothetically paranoid secretive President doesn’t even tell Congress what he’s doing, members of whom write the laws and who surely have a right to know, I hardly think these additional rules will mean much.

I don’t know. I’m just guessing, above; someone will come along shortly with more knowledge who can point out the flaws in everything I’ve said. It doesn’t seem to this legal and national security layman that the checks and balances would be very powerful.

Good point. Although I think it’s possible to grant security clearances in a fair and non-partisan way. Although not under this administration seeing how some judges from military tribunals said they were pressured to find defendants guilty, and if found innocent, the defendants were tried again in order to get the “right” result. And then there’s that whole mess of the Justice Department being politicized. But under a different administration…

True. Something similar has happened to the Justice Department, so you have an excellent point.

Federal judges are appointed by the President and approved by Congress. Oh crap, appointed by the president, there’s a fatal flaw in my plan. Although if you have a President from one party, and Congress controlled by the other, it might work. And I think that once appointed, it’s very difficult to remove judges. I know that the Supreme Court judges are appointed for life. I’m not sure about other federal judges.

My memory is crap, so I don’t remember the names of the people involved, but there was a guy who was freed after being in prison for 20 years when it was discovered that he was innocent. Only after being freed did two lawyers say that a client they had confessed to the crime. To me, this violates the Constitution’s right for a fair trial, but plenty of lawyers disagree.

Well yeah, Bush bypassed the FISA courts for his warrantless wire-tapping program.

So I guess…the president is free to do whatever he wants, and nobody can challenge or stop him?

Congress is the one empowered to strip the President of his power, if they have the political will to do so. The question is, can they successfully impeach a President in the House, and put him on trial in the Senate, if the President has the authority to withhold key evidence against him?

It would come down to a political showdown between Congress (and its power to subpoena) and the President (in his authority as CinC). So far as I know, that hasn’t been tested.

The trial is not procedurally unfair because witnesses having relevant evidence declined to give it (in that case you mention, because they felt ethically bound not to divulge their client’s confession till he later died). It may be substantively unfair, but that happens all the time when Tookie the accomplice/bystander absconds, hides, declines to give his exculpatory testimony because he’s afraid, or on the run, or doped out of his mind.

The Constitution doesn’t even come into it. How can the actions of private individuals (those lawyers) create “unconstitutionality?” They can’t.

Sorry, I’m just on a bit of a crusade about “unconstitutional” being used as a synonym for “I really think that sucks.”

Well, even if you get rid of the President, you would need the new president to change the actions of the previous president because a president can start things that can go on even when he (and someday she) is no longer in office.

And actually, I should have been more specific in my OP. What I’m thinking of is a court system accessible to those without the appropriate security clearance set up to deal exclusively with matters that require that security clearance. So, for example, that lawyer who accidentally got mailed his own wire-tapping files would have a court he could go to to challenge the legality of it*. Even if, as I stated, he would need to have his lawyer handle the case without him.

So, I have two questions for everyone.

  1. Should it be possible to challenge any program/policy/rule/regulation/procedure/etc… of the President, even if they are classified?
  2. If so, how would you suggest to go about it?

*I know he has another chance and is arguing that the government already admitted to the program, thus, it’s no longer secret.

The lawyers had a client who admitted to the crime. They kept their mouths shut. I don’t see how that’s even close to being fair. And lawyers aren’t Tookie the accomplice/bystander, or whatever. They are part of the legal system and should follow the constitution. How is it fair to withhold evidence that would allow an innocent man to go free? And before anybody says life isn’t fair, remember, it’s the constitution that says that trials are to be fair.

Everyone should have the right to a speedy, fair, public trial. If the only evidence against a suspect, or even the crime they are charged with, is so secret it can’t be uttered aloud, then let the bastard walk. If it is more important that the suspect be convicted, then spill the secrets.

The government is trying to have their cake and eat it too. In the process they’re throwing out everything sacred and good about this country.

The problem is that you are, just as I suggested, making the erroneous assumption that “fair” and “constitutionally required” mean the same thing. Legally and factually, this is simply wrong.

The Constitution places limits only (please focus on that only) on what the government does (or, agents of the government acting under color of authority).

The lawyers were neither employed by the government, nor agents of the government. They do not have to “follow the constitution,” because it does not limit their conduct (alternatively, they could read and follow the constitution and quite correctly conclude that it placed no limitations on them).

Please note that I am not saying it is great or “fair” what happened to the wrongly-convicted guy. “Constitutional” is not a synoym for “fair.” The Constitution never purported to guarantee or deliver consistent substantive fair results in life. Heidi Klum still won’t date me. That’s so not fair. But, not unconstitutional.

Please note that I am not saying the lawyers who stayed silent were necessarily correct to do so. For my money, there were steps they could have taken to absolve themselves of the obligation to respect their client’s confidences. Again, if they made the wrong call there, it has nothing whatever to do with the Constitution.

Again, “unconstitutional” does not mean “I don’t agree with it” or “unfair.”

Just because I always think it is salutary to actually read the text before characterizing or invoking it:

Nothing in there (the Sixth Amendment) was implicated or violated when that guy was convicted because the other guy’s lawyers hid the secret identity of the real murderer.

Back to the OP: The Sixth Amendment (which I quoted above) does raise the serious issue here. “Speedy and public trial” seems pretty clear to me.

Avoidance of the Sixth Amendment is also the explanation for bringing all those A-rabs to Guantanamo – that way they classify it a “military tribunal” and avoid the Constitution (which apparently doesn’t apply to military law, though I am not sure why that would be).

I strongly disagree with not allowing the defendent full access to all evidence to be used against him (including the identiy of any witnesses). The only fair solution would to either not allow such evidence at all at trial or give the defendant clearance. Keeping the general public from the trial is one thing, but using secret evidence that the defendent isn’t allowed to see makes a total mockery of justice.

That is what America is supposed to stand for and what Americans should be fighting to preserve. Instead they’re shitting in their pants and destroying the very things which the country was founded on.

No it is not. Trials secretly conducted behind closed doors might as well not be conducted at all. All of those rights you think you are granting the defendant are just ethereal figments of your imagination if the public can’t make sure they are upheld.

The guys who wrote the Constitution were very familiar with and concerned to prevent various abusive judicial tactics that had historically existed in England. They surely would have remembered the reviled “Star Chambers,” which were basically secret courts where you didn’t really know what was going on and were exposed to all sorts of politically-motivated or otherwise-improper accusations.

I was just trying to think of a way to balance the government keeping its secrets, secret, and allowing people it detains to have a trial.

I’m not against state secrets, classified information, and so on, but I am against the military, FBI, CIA, whoever, snatching people up, denying trials and saying “Trust us, we know so and so is bad. No, we can’t tell you why.”

I also seriously doubt we’ll ever see a system that will allow a trial when the information given could compromise secret intelligence gathering operations or expose state secrets, so I’m just trying to think of a system that might realistically get approval that would allow people who are detained to get a trial. I like what you’re saying, but realistically, I don’t think that there would be enough support from politicians of either party to make it happen.

Bush will first pardon himself for any unspecified wrongdoing; then, he will start signing similar pardons like MLB slugger signing baseballs.