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Senate Proposal To Clarify 'State Secrets' Doctrine
I Don't Believe in Imaginary Property writes "Sen. Edward Kennedy (D-MA) and other lawmakers are pushing legislation to limit the power of the state secrets doctrine in blocking lawsuits. The doctrine has been used as a 'get out of jail free' card in cases like the EFF's warrantless wiretapping lawsuit. This new legislation would make it harder for the administration to invoke the doctrine, and provide new allowances, such as using attorneys with security clearances to enable the lawsuits to go forward even when the issue is appropriately raised." Update: 04/28 16:58 GMT by KD : The New Yorker is running a detailed piece, State Secrets, by Patrick Radden Keefe, about how the use of the state secrets doctrine is playing out in one particular case.
And the United States Congress can override a veto with a 2/3 majority. If a Democrat wins the Presidency and Bush tries to veto this in the lame-duck period, they would probably be able to get the numbers they need to do it.
Random Thoughts From A Diseased Mind (Not For Dummies)
The opposition probably shouldn't automatically win, but secrets need to be interpreted by the court as existing in the worst reasonable light. Note that that's worst reasonable, not worst possible. In some cases, we are definitely facing the opposition pretty much winning a point regardless of how that affects the whole court case.
I don't mean the judge simply declaring an automatic worst case interpretation to the jury either, but there are things that just about any jury will take into consideration once they are said, even if the judge orders them to disregard those bits, and if that tips the whole judgment of the jury, than that's the risk the prosecution takes.
Note that the government takes that sort of risk with perfectly normal, non-secret testimony too. That's why they should still face the risk if they use secret testimony.
If the government wants to file a case against someone for espionage for example, and declares that some of their evidence is secret to protect the identity of an agent in place, it would probably be reasonable for the court to accept as a given that if said agent really exists then there is a real need to protect that agent's identity from disclosure. This still means we have testimony that would normally fall under hearsay rules, i.e. someone else has to testify, in court where he faces the possible penalties for lying under oath, that he heard the agent say something (or read or otherwise acquired the information that is now second hand). Even if the court were to accept that this situation is an exception to normal hearsay rules, in the same way as a deathbed confession can be, it's still reasonable to limit what can be used in the case, to make somebody be accountable for swearing that the reason for secrecy actually exists as stated, and all classification is based on that reason.
If the source can't reveal even the cloudiest details about the location where the testimony originated, or the time it occurred, then the Defense should, at the very least, get to ask for something definite enough to be cross examined as a precondition of the evidence being admitted at all, and somebody to direct the cross examination at.
For a protecting an agent's identity based claim, someone highly and publicly placed in the related intelligence agency should have to testify under oath that the information originated in their agency, from sources who were active agents at the time. We probably should have a lot more than that, but it's a necessary start for any kind of fair trial. Evidence that cannot be disproved is just like a scientific theory that can't be falsified - there is no such thing. If there is no ability to challenge, it's not evidence.
If the government can't somehow offer evidence that has some testability or potential to be challenged, and limit the effects on the trial to ones relating to those parts of the testimony that can be examined, then they are in the position of asking the judicial system and the public to take any and all executive branch testimony on sheer, blind faith. At that point, what the executive branch is really violating is the principle of separation of church and state.
Who is John Cabal?
Lincoln suspended the writ of habeas corpus and kept it a secret from the American public. John Marryman was being held without trial, and the Supreme Court issued a writ of habeas corpus. Lincoln basically ignored the writ.