In the trial of NSA whistleblower Thomas Drake, the prosecution is attempting to use the Silent Witness Rule, which means that the evidence at trial will be closed off from the public; only the counsel, jury, judge, and witnesses can see it. The rule is rather new. It has only been used in a handful of cases. Essentially, it works by having the evidence available to the judge, jurors, and laywers, but not to the public.
The argument for the Silent Witness Rule (and its old cousin, the Classified Information Procedures Act) is that it will allow cases to come to trial that, in the past, have been thrown out of court due to the government worrying about it's secrets being revealed.
The concept allegedly prevents 'graymail', where the guilty get off free after threatening to reveal secret information in court. However there is another argument for it. Sometimes, citizens want to sue the government and may require sensitive information to be used as evidence. The classic example is the Air Force widows defrauded by the military in Reynolds v United States; they never got a day in court because state secrets privilege disallowed it.
Here is the problem. Look at the theory. Then look at what has happened in actual, real cases.
Khalid El-Masri, a German citizen, was kidnapped, beaten, raped, and tortured by the CIA. Why? His name is El-Masri; there is a terrorist named Al-Masri. They got the name wrong. He sued the government (El-Masri v. Tenet), but his case was thrown out by judge T.S. Ellis III because a trial would reveal government secrets. El-Masri appealed, but the higher court agreeed with Ellis. El-Masri never got a day in court.
When judge Ellis got another state secrets case, US v. Steve J. Rosen (an AIPAC lobbyist), he didn't throw it out. Instead, he decided to get creative and make up a new 'fairness test' that would allow the government to present secret evidence using the Silent Witness Rule. The main difference between this trial and El-Masri's? El-Masri involved a citizen suing the government. Rosen involved the government suing a citizen.
The pattern is clear.
If the defendant is some ordinary citizen, like Steve Rosen or Thomas Drake, then the court can go all loosey goosey with the Fifth and Sixth amendments, due process (which goes back to the Magna Carta), and the right to know the evidence against you.
If the defendant is the Government, however, then the case gets thrown out because it would reveal state secrets. The plaintiff, like El-Masri, never gets a day in court, never gets a 'fairness test' about the silent witness rule, and never gets a chance to present evidence.
The only plaintiff, apparently, who gets to use the silent witness rule is the United States government. How has the government used this advantage? Has it stopped mad bombers, terrorists, assassins, spies, and saboteurs? No. Most of the use of the silent witness rule has been against ordinary citizens, most of whom are simply leakers, or in Drake's case, a whistleblower. The silent witness rule has almost never (if ever) helped convict a terrorist.
Judge Ellis has said that he has no power over deciding which cases the government chooses to bring to trial, and which it does not. He does, however, have the power to decide which cases get thrown out, and which get heard. In his choices on Rosen and El-Masri, he has decided that when the government is sued, we have to worry about state secrets being revealed, but when a citizen is sued by the government, that worry goes out the window, and we can bend the Fifth and Sixth amendments into innovative new shapes to fit the desires of the prosecution.
Judge Ellis is fond of lecturing people about the Rule of Law. When he reduced Larry Franklin's sentence in 2009, he forced him to give talks to school kids about the Rule of Law. Ellis' point is that government employees shouldn't decide, on their own, when a law is valid and when it is not. Under Lex Rex, we are a nation of laws and not of men, and everyone should be equal before the law.
When it comes to the silent witness rule, though, it would appear that some defendants are more equal than others.
--- Update May 2011 ---
There has just been yet another case in which alleged torture victims never get a day in court against the torturers because of State Secrets Privilege. Again, the Silent Witness Rule didn't help them, at all. The alleged torturer is Jeppesen Dataplan, a division of Boeing that was working for the US Government.
This time the plaintiffs are five, including Binyam Mohamed of Great Britain.
Supreme Court Declines Rendition Torture Case Involving ‘State Secrets’, By David Kravets, Wired.com, May 17, 2011
Save Tom Drake, facebook
Government Accountability Project, Thomas Drake page
TS Ellis' decision to throw out El-Masri v Tenet due to state secrets: from pitt.edu 2005
TS Ellis' decision to allow the silent witness rule, US v. Rosen: from fas.org
TS Ellis' 'rule of law' comments at Franklin reduction-of-sentence hearing: from fas.org 2009
William Welch's motion to use Silent Witness Rule in US v Thomas Drake from fas.org
"The Muted Rise of the Silent Witness Rule in National Security Litigation", Jonathan Lamb, ssrn.com 2008
DoJ to use secret code in leak trial, Josh Gerstein, Politico, 2011 3 10 (Drake case)
Animal Farm, George Orwell, 1946
Magna Carta (archives.org) 1297
AIPAC Court Adopts Silent Witness Rule, Steven Aftergood, Federation of American Scientists, 2007 11 7
Disclaimer: I am not a lawyer. By reading this you agree I am not responsible for any use of this article by anyone.