Secret Justice

Many went to prison, were forced to serve in punishment non-combatant units, lost their right to vote, and found employment prospects after the war blighted by the stigma. A small group had even been condemned to death after refusing orders in France. The sentences were commuted when their fate was leaked to their political supporters. It was the only local authority in the country to do so.

The destruction of military tribunal records means that the only record of what happened elsewhere resides in local newspaper reporting. The policy of the then Conservative Mayor in Deptford, William Wayland, means that record is practically a blank page. A remarkable memoir by local postal worker Henry Albrow , left to the Imperial War Museum, indicates he may have provided the only account of what it was like to appear before the secret Deptford Tribunal.

Every man is my brother.

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I believe in the socialist Jesus Christ and I cannot connect myself in any way with war. The British legal system must learn from this affront to our history. Secret justice is intrinsically corrupting and problematic. It is so insidious that I believe judges and parliament must simply find a better way of protecting sensitive information and vulnerable people.

Secret Justice: When National Security Trumps Citizen Rights

Far too many significant legal battles based on high principle, conscience, religion, and social and political status are taking place behind closed doors. We cannot fight injustices if they happen out of sight. We must not let our modern public record disappear into an empty vortex of secret history. Pets in Victorian paintings — Egham, Surrey. The history of pets and family life — Egham, Surrey.

Available editions United Kingdom. Tim Crook , Goldsmiths, University of London. In memory of conscientious objectors. PA A small group had even been condemned to death after refusing orders in France. Help combat alt-facts and fake news and donate to independent journalism. You might also like Pokemon Go has been a worldwide phenomenon, but it is not welcome in NSW law courts. Justice must be seen to be done. Finally, it was serendipitously transferred to a new judge who ordered disclosure of the document. That disclosure revealed that the only reason for the mail cover was that the organization was involved in protests against the Vietnam War.

The judge ruled the FBI's mail cover unconstitutional. In an ideal world, some impartial arbiter could determine on a case-by-case basis whether government secrets warranted suspending due process.

But this is not an ideal world, and there is no such thing as an impartial arbiter--that is why the Constitution commands due process of law. In Molerio's case, Scalia said society must simply trust judges to do the right thing. But judges, as Justice William Brennan once observed, "are human beings whose judgment necessarily reflects the press of human events.

The primary precedent for Molerio and the other decisions was a high court ruling, which involved the deaths of three civilians in the crash of a military airplane that was testing secret electronic equipment. When the government refused to turn over to the plaintiffs a report of its investigation of the accident, the district court ordered that the facts on the negligence issue be considered established in the plaintiff's favor.

In United States v. Reynolds , the Supreme Court reversed by a six-to-three vote and created an "official secrets" privilege that precluded the discovery of confidential government information by parties to a civil lawsuit. However, the decision did not prohibit the plaintiffs from pursuing their case if they could produce unclassified evidence to support their claim. Lloyd sued the government, claiming he never received compensation. The Supreme Court threw out Lloyd's suit because of the secret nature of the agreement. Because of the publicity it would generate, the Court said, the suit would constitute a breach of the espionage contract.

The crux of Lloyd was an assertion that "as a general principle, public policy forbids the maintenance of any suit. But the Civil War was an extraordinary time when the courts routinely tolerated suspension of civil liberties because the nation's very existence was in jeopardy. Even if the circumstances of the Cold War were analogous, it's questionable whether Lloyd should have such far-reaching implications. Neither Lloyd nor Reynolds ever suggested that lawsuits could be resolved on the basis of secret evidence.

Prior to Scalia's ruling in Molerio , government lawyers had unsuccessfully attempted on several occasions to introduce secret evidence in federal trials. Mitchell , a civil suit brought against former Attorney General John Mitchell for wrongful wiretapping, the government asked to submit evidence it could not share with the plaintiff--evidence it said was vital to national security. A federal trial court would hear nothing of it, ruling that such a tact was a "wholly unacceptable" violation of due process.

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Schultz , a case, a federal court again prohibited the government from providing secret testimony to justify its denial of a visa to an allegedly undesirable alien, the widow of the martyred Chilean president, Salvador Allende. If the government wanted to submit relevant evidence, the court said flatly, the government had to make that evidence public. The government capitulated, and Hortensia Allende got her visa. Interpretation of precedents can vary, of course, but that is precisely the point.

Lost voices

That is why our legal system does not place complete faith in the judge. It requires due process. Despite the entrenchment of conservatives in the judiciary, undoing this legacy need not be difficult. The Clinton administration has already taken the first step by pledging to declassify many of the billion-plus documents in the government's archives. The administration has also appointed several task forces on purging the vestigial accoutrements of the Cold War.

Yet even if the administration manages to tame the national security behemoth, classified information will remain. Bureaucrats will continue to claim that disclosures might compromise national security--particularly in suits against law enforcement agencies. Congress, though, still makes the law, and it has already provided a mechanism, the Classified Information Procedures Act, for protecting government secrets while allowing litigation to proceed-- at least in criminal cases.

CIPA was adopted in to frustrate criminal defendants' efforts to "blackmail" prosecutors by threatening to reveal classified information in the course of their defense. Rather than compelling the government to dismiss charges in order to protect secrets, the legislation provides for judicial review of the material to determine whether the information is relevant to the defense and whether the defendant's rights can be protected without compromising legitimate government security interests. If the court determines disclosure of classified information is essential to the defense, the government then faces a choice: This is the provision Aldrich Ames hopes to use.

Of course, there is an important practical difference between cases subject to CIPA and civil litigation against the government. CIPA defendants are invariably government agents who are already privy to the allegedly sensitive information. They and their lawyers have access to the same information available to the prosecutors and can argue the merits of the government's claims and the sensitivity of the information on an equal footing. On the other hand, civil litigants faced with government claims that sensitive information trumps the plaintiff's rights are forced into a game of blind man's bluff.

In , a federal judge took a CIPA-type approach to deal with secrets in civil cases. The government claimed that a relevant FBI report was privileged and ought not be revealed. Since the judge, Charles Joiner, found that the plaintiffs had presented the court with "a case which is neither frivolous nor beyond belief," he would agree to suppress the report only on condition that a judgment of liability be entered against the government. As in the criminal context, the government was not permitted to protect its secrets at the expense of its adversary. Although the Federal Advisory Committee on the Rules of Evidence endorsed this approach, no judges have followed Judge Joiner's example.

The main objection to the remedy is that an undeserving litigant may occasionally walk away with a windfall. But that seems like an acceptable trade-off, particularly when so many government claims of national security turn out to be specious. Besides, the remedy need not be so heavy-handed.

Secret justice raises constitutional questions but offers few answers

For example, the courts could offer the government the option of a closed adversarial hearing rather than an open public trial. True, this would require sharing the classified information with the litigant's attorney, but such procedures are not unprecedented. Lawyers, as officers of the court, often receive confidential information under protective order forbidding disclosure to outside parties. Few lawyers would risk losing their licenses by violating such orders.

Offering closed hearings might not be a perfect solution. It would require some litigants to waive the right to a jury trial, and it might even require some lawyers to withhold information from their clients thus creating a messy conflict of interest. But it would certainly be better than no trial at all. In the meantime, the Clinton administration could simply instruct its lawyers not to make such secrecy claims. Even when government lawyers feel compelled to assert privilege, they can negotiate settlements or agree to fair procedures.

There is no report of a government lawyer having invoked the Molerio doctrine since Clinton came to power, and that is certainly a good sign--as is the appointment of committed civil libertarians to posts on the federal bench. Indeed, after three nearly uninterrupted decades of conservative court-packing and expansion of the national security state, the arrival of a liberal administration offers hope that the obsolete violations of due process born in the Cold War may finally be retired as relics. Skip to main content. Home Magazine Blogs Tapped: Home Politics Legal Affairs.

Frank Askin Spring A series of recent court decisions upholds star-chamber proceedings. Granted, were national security truly at stake, these transgressions might be understandable, if not forgivable. History suggests, however, that when an administration or government agency invokes the cause of secrecy, it often does so to protect its political interests or reputation--not national security.

That was the lesson of the New York Times Co. United States , the so-called Pentagon Papers case in which the government sought to suppress publication by the Times of confidential Rand Corporation documents on the Vietnam War. The government, represented by Solicitor General Erwin Griswold, had said publication of the papers would seriously jeopardize national security. When the Times prevailed and published the documents, government integrity proved to be the only casualty.

Years later, Griswold conceded the purported risk never existed: It quickly became apparent to anyone who has considerable experience with classified materials that there is a massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.

While common law guaranteed jury trials to British subjects, it did not apply to the colonies. That is why the Founders wrote the jury trial guarantee into the Bill of Rights.