Secrecy in court shuts out defense

The Boston Globe
Lawyers barred in terrorism cases
By Mike Robinson, Associated Press | June 18, 2006

---

CHICAGO -- Witnesses testified under assumed names, the public was barred from the courtroom, and part of the hearing was held in the judge's chambers, with defense lawyers shut out.

``I don't know what took place back there," grumbled Michael E. Deutsch, chief defense attorney for Muhammad Salah, a Chicago man charged with laundering hundreds of thousands of dollars to pay for murders, bombings, and other acts of terrorism by the Palestinian militant group Hamas.

Court secrecy is getting tighter across the nation as the government wages war on terrorism, lawyers say.

In Maryland, a federal judge last month dismissed a lawsuit filed by a German man, Khaled al-Masri, who claimed to have been illegally detained and tortured in overseas prisons run by the CIA. After receiving a secret written CIA briefing, the judge ruled that the civil trial would expose state secrets.

The New York Civil Liberties Union is asking an appeals court to order a federal judge in Albany to unseal his decision refusing to throw out charges against alleged money launderers Yassin Aref and Mohammed Hossain. They say they may have been targets of a warrantless wiretap. The judge's decision came two hours after the government submitted a secret court document.

In Chicago, attorneys for Sami Latchin, a man accused of serving as a ``sleeper agent" in the United States for Saddam Hussein's regime, have asked a federal judge whether the National Security Agency eavesdropped on his telephone conversations. Prosecutors say a representative of the Justice Department in Washington will answer the question -- but only in the judge's chambers with defense attorneys not allowed.

Such secret procedures, once rare in American courts, have become more common since the Sept. 11 terrorist attacks. Prosecutors say they need secrecy to protect undercover agents, informants, and witnesses from reprisals and to keep critical information pipelines from being shut down.

But defense attorneys say the right of defendants to confront their accusers, guaranteed by the Sixth Amendment to the Constitution, is being worn away under the guise of national security.

``It's critical to the functioning of a healthy democracy that people know what the government is doing in their name," said David Cole, a professor at the Georgetown University Law Center.

But former federal prosecutor Andrew McCarthy, who sent the blind Egyptian sheik Omar Abdel-Rahman to prison for plotting to blow up New York landmarks, scoffed at the notion that the public has a right to know what is going on in terrorism investigations.

``In point of fact, the public doesn't have a right to know a large variety of information maintained by the government, particularly its investigators, its intelligence services, and that presumption doesn't change just because someone is charged with a crime," McCarthy said.

Ex parte hearings -- from which one side is barred -- are legal under the Classified Information Procedures Act, passed three decades ago to combat ``graymail," in which defendants charged with spying would try to force the government to drop the charges by threatening to expose US secrets. But Critics say the law is now being overused.