State secrets undermine due process: First, Fifth and Sixth amendments violated

OPINION:

In a public courtroom in the United States in which a high-level criminal case is being tried, the prosecutors are permitted to press a buzzer on their table in the midst of an argument to the court by defense counsel.

The buzzer cuts off the courtroom’s public address system, and then the judge silences the defendant’s lawyer. This happens whenever the prosecutor thinks the defense counsel is about to reveal a state secret.

The use of this Soviet-style system to disrupt defense counsel as the attorney speaks is a hallmark of proceedings in military trials at Guantanamo Bay Naval Base in Cuba. It is also profoundly unconstitutional.

This happened last week in the case of Encep Nurjaman, an Indonesian man whom the government calls Hambali, on trial for bombing a hotel in Jakarta, Indonesia, in 2003. Hambali and two of his colleagues have been in U.S. custody for nearly 20 years, at first at a CIA black site where they were tortured and since 2006 at Gitmo.

The hearings in which the government lawyers repeatedly interrupted defense counsel are essentially defense motions concerning the speedy trial and the use of evidence obtained under torture.

Hambali’s military and civilian lawyers were arguing that his right to a speedy trial — guaranteed by the Constitution to all persons, not just to Americans — has been egregiously violated by holding him for 20 years before commencing his prosecution. Hambali also argues that the extent of his torture and the identity of his torturers can be revealed to the jury if his trial goes forward.

The government argues that the reasons for the 20-year delay in prosecution, the extent of his torture, and the names of his torturers are all state secrets.

Here is the backstory.

On Oct. 6, 1948, a U.S. government plane was leaving from Robins Air Force Base near Warner Robins, Georgia, for a flight to Orlando, Florida, when it crashed, killing its crew. When surviving family members sued the government to determine who manufactured the plane and why it crashed, the feds declined to provide any information, asserting that what was sought constituted state secrets.

In 1953, when the Supreme Court upheld this novel argument, it effectively changed the rules of evidence by permitting the federal government — without disclosing to a judge what the secrets are — to withhold evidence merely by making this claim.

Since 1953, the government has successfully asserted the state secrets claim dozens of times, each time claiming that the revelation of the so-called secrets would adversely affect national security.

In 2001, after the statute of limitations had long expired for any litigation over the 1948 crash, and reporters filed Freedom of Information Act requests for the alleged state secrets, a judge ordered the government to reveal them.

There were none.

The entire state secrets doctrine was based on covering up government embarrassment and wrongdoing and shielding a government contractor from litigation, not the protection of legitimate secrets.

The state secrets doctrine is a fraud and has been used by the feds to cover up unlawful behavior for 70 years. And its employment by federal judges who have declined to require that the government produce the secrets for a judicial examination in secret — so the courts can determine if these secrets do exist and if their revelation would harm national security — is a craven rejection of a core judicial function.

That function is to ensure that trials are fair and their outcome is based on evidence, not deception.

The claim that the existence of wars that are now over somehow justifies the detention without charges of a person as to whom the government has no evidence of wrongdoing unobtained by torture, that somehow war justifies torture, and that somehow all of this can be kept secret are claims that violate the Constitution and the federal anti-torture statutes that all who work for the government have sworn to uphold.

The First Amendment guarantees transparency for the public. The Fifth Amendment guarantees due process for all persons. And the Sixth Amendment guarantees effective assistance of counsel. All were violated by the prosecutor’s buzzer.

The government is slow to learn that even the most hardened enlisted men in our military cringe at torture. Indeed, in two trials thus far, juries have either acquitted or offered recommendations for clemency that a judge followed, not based on any inherent goodness within the defendant but based on the torture visited upon him by the CIA or the U.S. military.

It appears that the language Hambali’s defense lawyer, a Navy lieutenant, was about to utter would have hinted at the locations and duration of Hambali’s pre-Gitmo detention. But we will never know, as the lawyer was prohibited from telling the judge what he needed to say in order to vindicate his client’s constitutionally protected rights. Of course, there is no procedure in place for defense counsel to use a buzzer to stifle the government.

Not only is this maddening to those of us who believe that the Constitution means what it says, but the types of so-called secrets that this lawyer needed to call to the court’s attention in order to make his argument effective have already been spilled in other cases. Open sources will show any serious researcher the locations of American torture centers and the horrific medieval miseries produced there.

When the scales of justice are tipped to favor the government in a case involving murders in Indonesia 20 years ago that have nothing to do with U.S. national security when that imbalance permits the government literally to silence a defendant’s lawyer with judicial approval, and when the very people who have sworn to preserve, protect and defend the Constitution can instead trash it, are anyone’s liberties safe in America?

What kind of a society prosecutes harmless drug users but not harmful government torturers? Ours.

• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.