Secret evidence is incompatible with the rule of law

By Kristopher A. Nelson
in June 2009

900 words / 4 min.
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While the use of secret evidence may be acceptable initially (as part of an investigation or short-term detention while more evidence is gathered), the defense needs access to this evidence. Without it, any trial or legal process is simply unfair.

Note: this post is from 2009. Evaluate with care and in light of later events.

Two recent rulings bring up the question of “secret evidence,” that is, evidence used against a defendant that (for whatever reason) is not revealed to the defense, but is nevertheless used against them. Certainly, the issues can be complicated, as the U.S. government is discovering while attempting to balance national security interests (including the potential to compromise sources, methods of interrogation, and so on) with successful convictions. The U.K. government also struggles with the issue as it seeks to prevent potential terrorist attacks.

The first ruling came in federal court in the United States as a district court judge ruled against the Administration’s attempt to restrict defense access to information:

Senior U.S. District Judge Thomas F. Hogan has turned down a request by the Obama Administration to restrict lawyers’ access – in virtually all remaining Guantanamo Bay cases – to the files the Administration’s detention task force is assembling on every prisoner remaining at the Navy prison in Cuba.

via SCOTUSblog.

The second ruling is from the U.K., and came down as a unanimous decision by nine law lords restricting the use of secret evidence in so-called “control orders” (a form of preventative house arrest):

The men, who have been held under virtual house arrest under the Government’s control order regime, won the unanimous backing of a panel of nine law lords, on the grounds that the suspects did not know what they were accused of or what evidence was being used against them.

via the Times Online.

The U.K. government argues that they have processes in place to prevent abuse of the system, but that the sensitive nature of the evidence, combined with the seriousness of the terrorist threat, justifies the use of secret evidence.

The law lords disagreed:

Lord Phillips of Worth Matravers, the senior law lord, said: “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.”

The eight other lords agreed. “The principle that the accused has a right to know what is being alleged against him has a long pedigree. … The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him,” Lord Hope said.

This is exactly my beginning position. As a foundational proposition, a justice system based on the rule of law is incompatible with the use of secret evidence. Such evidence undermines our adversarial legal process, including fundamental rights like due process and the right to confront witnesses. Similar abuses of the English legal system, on which the American system in based, led directly to the Bill of Rights in 1789, and contributed to the desire of American colonists to separate from England.

Nonetheless, despite this, I might be convinced that such evidence could have an application in the investigatory process, or even in short-term preventative detention to prevent imminent threats or to gather evidence that can be used in court. But beyond that limited use, secret evidence provides the executive branch with too much power, a position both liberals and conservatives can, I believe, understand and support — despite the tendency for each side to oppose executive power only when the other side is in power.

I can also envision a potential system that seeks to limit the exposure of such evidence by restricting who can see it and evaluate it. Evidence does not need to be made available openly to the public (although this is the ideal, since it provides the greatest protection against abuse – but then again, the public does not always use such information responsibly). But evidence must be revealed at least to the defense so that a proper case can be mounted and questions can be asked. This is how our adversarial system functions and, while imperfect, the system is better than alternatives.

Perhaps a military commission system is the right way to balance these concerns, since our traditional system is simply not set up to handle the limited release of sensitive information to defense counsel and no one else. Certainly I have grown to have great respect for the ability of military lawyers to act as defense counsel, despite the negative impact on careers that occurred in the last 8 years to those who did so. A lawyer has an ethical duty to the law and to his or her client. And military attorneys have more than lived up to this ethical duty.

Regardless of the approach, I believe that while the use of secret evidence may be acceptable initially (as part of an investigation or short-term detention while more evidence is gathered), the defense needs access to this evidence. Without it, any trial or legal process is simply unfair.