16 October 2007

State Secrets Doctrine...

A not so new tool in the 'war on terror' for the US and one that other countries would surely like to adopt, maybe. The State Secrets Doctrine or Privilege is a simple notion really, when you are arrested, indicted, and then brought to trial, the Government as prosecutor can invoke a privilege which allows them the authority not to furnish the 'evidence' to the court let alone to the defense team. The question is how can a fair trial be held if the defendant or the accused never gets to see the evidence, let alone cross-examine it, that is arrayed against them.

A recent US case brought by a German citizen, Khaled el-Masri, who alleges that he was kidnapped, transported to and through various third countries, and tortured was dismissed in the US District Court, was affirmed on appeal at the Fourth Circuit Court of Appeal, and the US Supreme Court refused to here any further appeal on 9 October 2007.

An interesting factoid here is that in the period from 1954 through 2001 the privilege was invoked on 55 occasions. In the period from 11 September 2001 the privilege has already been invoked on a further 23 occasions. The privilege was first accepted by the US Supreme Court in 1953 in the case of United States v. Reynolds.

Striking a balance between the need to maintain confidentiality or even in extreme cases the secrecy of information sources in the interests of national security is a valid claim and there is a real need with the basic rights of individuals who stand accused of crimes to be able to test the evidence against them in a court of law. The State Secrets Privilege is conceivably prone to abuse where the State invokes the privilege but there is in fact no real secrets being preserved. If anything the Reynolds case highlights this with the declassification of the supposed documents that were so secretive that they could not be revealed at the time of the trial.

Independent oversight is critical to fairness of the trial process where State Secrets Privilege is to be invoked. Perhaps the way forward is a specialized panel that can assess the documents subject to the claim of State Secrets and report to the judge on whether the documents should be subject to the privilege or not. Where the determination is that the documents are not subject to the privilege then the judge issues an order for the documents to be released. Alternatively, the process could be a judge-alone trial (simply no jury) and judges are provided access to all documents subject to a claim of State Secrets privilege and makes determinations.

Even so, where the allegations and subsequent charges entail severe punishments the interests of justice must be paramount. The Judge could enforce gag orders and restrict media access and the like but a defendant must have access to the 'evidence' against them to mount a defense. In the el-Masri case there is considerable independent confirmation of the allegations brought by el-Masri regarding the extraordinary rendition process and the torture he suffered. Yet, at every turn his pursuit of justice has been thwarted by a government hiding behind the State Secrets Privilege. Yes, el-Masri had his day in court but the proceedings were hardly fair. The reality is that el-Masri was the wrong man, he was kidnapped and tortured, and ultimately released because he was the wrong man.

It should not be too long before all upstanding democracies in this world seek to enjoy the unfettered power that the State Secrets Privilege brings.

Human rights in the age of terror, if you're lucky!

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