The Dog Ate My Evidence-What happens when the government can't re-create the case against you?

[babylonsister]

The Dog Ate My Evidence
What happens when the government can't re-create the case against you?
By Dahlia Lithwick
Posted Tuesday, Oct. 16, 2007, at 7:01 PM ET



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.

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."

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.

more...

http://www.slate.com/id/2176017/nav/tap3/

[ixion]

1. we become more like the USSR all the time...

It makes me very sad. :-(