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Keeping Secrets, No Matter the Venue

January 6, 2002

They speak as though they know more than the F.B.I. when they dispute the value of giving investigators the keys to data encryption schemes. They oppose using a lower standard of evidence to detain a person, even when national security is at risk. Some consider themselves Libertarians, but they're all extremists, coming from a school that teaches it's better to facilitate countless acts of terror and violence than to take that next microstep towards tyranny by facilitating law enforcement. In their latest effort to keep the world safe, they're protesting a military tribunal for Al Qaeda members and others captured in the war on terrorism.

I realize that what the U.S. Government, or any other government, says during times of war cannot be assumed to be true. In fact, I wouldn't be surprised if the government partially contrived its translation of the first Bin Laden video, either to help justify the focus on Bin Laden or to maintain cooperation with countries that may have harbored terrorists involved in the September 11 attacks (as a translation by a network news program suggested). I also disagree with Secretary of Defense Donald Rumsfeld and others who say that Al Qaeda members should get a military tribunal because they don't deserve the rights of Americans. I'd have no problem with an Al Qaeda member having the rights that an American with a history of violence should have when on trial for a horrible crime. Nevertheless, I can find reasons for supporting a military tribunal, or "military commission" as some officials prefer to call it.

There is a dangerous lack of contingencies in civilian criminal courts for dealing with witnesses and evidence when some level of secrecy is required. This can prevent justice from being served in cases involving drug trafficking, gang activity, and any case in which the witness is an undercover agent or afraid of retaliation. The war on terrorism is an ongoing operation in which secret agents have a major role--perhaps a greater role than in any other war in history. It's likely that some of the intelligence these agents have gathered makes the case against certain Al Qaeda members, and that the details must remain classified for the agents' safety and the success of ongoing operations.

The spirit of that last point is evident in The USA PATRIOT Act of 2001, signed into law by President Bush in October (USA PATRIOT is an acronym used to shorten the act's "short title"--Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001). Section 213 allows delayed notice of the execution of a warrant if the court decides immediate notice would produce an adverse result (as defined in the US code). The more important the case and its related issues are, the more carefully it should be handled, and allowing some extra judicial discretion is sometimes a good idea.

The changes I'd like to see in civilian criminal courts certainly won't occur before the end of the war on terrorism--if ever--but military tribunals can address secrecy concerns with regard to Al Qaeda. Unfortunately, when United States citizens are involved--terrorists, gangsters, or whatever they may be--the law requires that trials take place in regular civilian courts, if available. Rather than allowing civilians to be tried by military tribunals when secrecy is an issue, I'd make civilian courts more suitable for cases requiring secrecy, including the Al Qaeda trials.

If a judge agrees that evidence shouldn't be completely disclosed, or that a witness should maintain some level of anonymity, testimony on that evidence or by that witness should be heard in a private session, only by a special panel of jurists, and never made public. The same jurists would be responsible for checking the background of the "anonymous" witness and investigating the testimony in ways that don't defeat the purpose of the special panel. To compensate for the limits on their investigation, the special panel would have access to information on the witness that would be disallowed if an attorney were investigating under normal conditions. This is a tradeoff of privacy for safety and justice, but I'd personally prefer giving up a lot of privacy to jurists sworn to secrecy than a little to the world in a public trial.

But back to the way things are. When classified information is a factor in the government's decision, I tend to follow the leader if I have any respect in his and his advisor's decision making ability. At the very least, I trust that the agency privy to the information is making the recommendation that bests serves its interest. With the current state of affairs, I have the required level of confidence in President Bush and (especially) his advisors to support the tribunals authorized by the President. I also believe the F.B.I. when they say they would be helped if they were given encryption keys, even if many criminals would stop using encryption. And I believe in the three things responsible for the people being detained in connection with the terrorist attacks--a level of law enforcement based on need, prioritizing the capture of the most dangerous criminals, and considering the ethnicity of someone under suspicion when the ethnicity of the culprit is known.