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Justice in Secret is Not Justice at All

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August 30, 2007

Yesterday Melissa Goodman, a staff attorney from our National Security Project, blogged on about the strange case of Mohammed Hossain and Yassin Aref, two men convicted here in New York of supporting a fake assassination plot concocted by the FBI.

In civil cases against its illegal surveillance program, the government has avoided arguing the legality or constitutionality of the program by saying any discussion of it would compromise national security (a.k.a. the famous “state secrets” argument). Similarly, in this case, government prosecutors have evaded defending its illegal surveillance of Hossain and Aref by using secret arguments that only the judge – and not the defendants’ lawyers – can see. Melissa explains how these secret arguments deny defendants in criminal cases a fair shake at justice:

Now, it’s a pretty basic rule that the government is not allowed to prosecute you for a crime based on evidence it gathered illegally, like evidence obtained through warrantless surveillance that is not based on probable cause. Yet it is quite possible that a number of criminal prosecutions in the past few years have been tainted by illegal surveillance by the NSA. We just don’t know. The government’s not telling. Who knows what they are saying in their secret papers? In this case, not even the judge is telling…The government’s use of secrecy as a weapon to avoid accountability for the illegal NSA program is bad enough when it is employed in the nearly 50 civil cases challenging the program. But it is a problem of an altogether greater magnitude when it is used in criminal cases, because the stakes are much higher. A conviction can lead to years in prison.

It’s a new, ugly frontier in the judicial system when it’s not justice that’s blind: it’s the defendants.