What happens when the government can't re-create the case against you?

The law, lawyers, and the court.
Oct. 16 2007 7:01 PM

The Dog Ate My Evidence

What happens when the government can't re-create the case against you?

Guantanmo Bay. Click image to expand.
Prisoners at Guantanamo Bay

Let me get this straight: The reason the Justice Department is contemplating redoing the "Combatant Status Review Tribunals" used in 2004-05 to label virtually everyone at Guantanamo Bay an "enemy combatant" is not that it concedes the original hearings were flawed, biased, or relied on evidence obtained by torture. The real reason the government might just be open to convening new CSRTs for the detainees is to get around a looming court-imposed deadline. If DoJ doesn't do something quickly, it will be required to finally share with the prisoners' attorneys the secret evidence it has used to hold these guys for all these years. Having told the courts it won't turn over those records, the government is now telling the court it can't.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Thus, in a petition filed last Friday in the D.C. Circuit Court of Appeals, the DoJ argues that it cannot possibly comply with the federal appeals court's order of last July to turn over this evidence. Reasoning: 1) Disclosure could "seriously disrupt the Nation's intelligence-gathering programs" and cause "exceptionally grave damage to national security." No surprise there. But it also argues that 2) the information used against the detainees at the CSRTs "is not readily available, nor can it be reasonably recompiled."

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Is the government taking the position that this evidence is both critically, vitally, and hugely important to national security, but also, um, lost? Not quite. But it is saying that the "record" relied upon to lock up men for years is somehow so scattered among various Department of Defense "components, and all relevant federal agencies" that it cannot be pulled together for a review. This claim—a version of "the dog ate our record"—is triply sickening in light of the fact that some of the detainees at Gitmo have reportedly undergone not one, not two, but three CSRTs, because the Pentagon kept demanding that they be retried over and over again until they were found guilty.

My problem here is not just that everything we now know about the evidence used against many of the detainees at Guantanamo suggests that they tended to lay blame on one another after multiple rounds of torture. My worry is that secret evidence that is obtained illegally is not just a Gitmo phenomenon anymore. There is no doubt that the same kinds of flimsy claims that put away folks at Guantanamo have supported massive dragnets against American citizens as well. A regime of recklessly overutilized administrative subpoenas known as national security letters and widespread government eavesdropping means that the same sorts of thin factual records that built these seemingly airtight cases against the "enemy combatants," are also building up the record against the rest of us. 

I know, I know. You think that what happens at Gitmo stays at Gitmo. Maybe. But the only thing more terrifying than convictions based on secret evidence is the possibility that when it comes time to fight those convictions, the secret evidence might just disappear.

This morning's paper reveals, for instance, that noble Verizon, pitching in on the fight against terror, admitted to having turned over American citizens' phone records to the government on hundreds of occasions, and that the FBI tried to use administrative subpoenas to gain information not just about specifics calls, but on everyone in everyone else's calling circle. (The phone companies take the position that it's not their job—or even their lawyers' job—to second-guess the president if he says he needs our private information. Question: Whose job is it to second-guess the president?)

These are not just a handful of warrantless subpoenas. As Christy Hardin Smith observes, "multiply that across every telecommunications company in the United States and the number of years that the Bush Administration has been end-running the FISA court altogether" and you suddenly have a massive amount of personal information, demanded in secret and turned over in secret, and socked away, shared with who knows which "component and relevant federal agency," with some of us swept into the mix because somebody once called to sell us a raffle ticket.

Oh, and it's not just the phone companies. New revelations from the ACLU and EFF show that the same NSLs used at Verizon have been used by the Defense Department to spy on Americans as well. Following a massive FOIA dump, and having studied more than 455 NSLs, the DoD now "seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests." In yet one more example of Government Without Borders, it now appears the DoD was colluding with the FBI to violate its own internal surveillance rules. And who was the DoD investigating? "Potential terror threats posed by people directly connected to the Defense Department, including civilian employees, contractors, active duty troops, reservists and their families."

In short, the military was gaining access to Americans' private information using powers the government's own auditors have acknowledged to be both abusive and illegal. The NSL provision of the Patriot Act was struck down by a federal judge last month. But as old spy programs die, new ones tend to rise up out of the ashes. And I suddenly find myself in the peculiar position of not knowing whether it's better if the government holds on to all that secret information it's been collecting, or if it gets lost.

The real paradox is this: The same Justice Department that's secretly and illegally collecting all these reams of personal information about us now informs the federal appeals courts that it cannot possibly pull together all the voluminous secret files used to condemn the prisoners to a life spent in shackles at Guantanamo. You may want to remember this as you let the newest NSL scandals wash over you (and as the Congress prepares to grant the phone companies immunity for cooperating in these warrantless witch hunts). The biggest problem with illegally obtained secret evidence is that if and when you ever get a chance to see it and test it in a court of law, you may already be in jail, and the evidence used to put you there may be scattered to the winds.

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