If you think that we don’t know much about how the government gathered evidence against accused terrorists, consider how it feels to be SDNY Judge Lewis Kaplan. He’s apparently as much in the dark as anyone else.  From the New York Times.

With the trial of a terrorism suspect held for nearly five years in the C.I.A.’s “black sites” and later in the military prison at Guantánamo Bay, Cuba, only weeks away, a dispute has arisen over the role of a key government witness.

The dispute has played out largely in secret, with much about the witness classified. But in heavily censored briefs, lawyers for the suspect, Ahmed Khalfan Ghailani, have argued that the witness should not be allowed to testify, and a federal judge in Manhattan has scheduled a hearing in two weeks on the matter.

Nothing instills respect for our system of justice better than talk of “black sites” for interrogation.  Probably some lovely spa on foreign soil, fine wine, wonderful food, native girls giving massages.  Or just your basic prison torture.  The government is prepping to try Ghailani, and doesn’t plan to use the information he gave up.  Because that would be wrong. On the other hand, they have a witness, an unnamed Tanzanian fellow who was miraculously discovered (what wonderfully good fortune) and wants to testify  on behalf of the government against Ghailani.  Even more kismet.  Wow, do we have a lucky government or what?

The defense, on the other hand, contends that maybe, just maybe, the government isn’t quite that lucky, but did something to make this nice Tanzanian fellow decide that testifying for the government is a better idea than, say, electrified alligator clips on his nipples.  Just saying…

Judge Kaplan, in his [heavily censored 36 page] ruling, which was made public Wednesday, said that it was “not clear” the witness “truly would be the volunteer that the government claims” or that “unlawfully obtained evidence did not play a role” in securing his cooperation.

“The record discloses nothing about what happened while he was in Tanzanian custody,” Judge Kaplan said, “and it is sketchy even about what took place after the F.B.I. arrived.” The judge said that it was known only that the witness “was released after he was questioned by the F.B.I. and promised to appear as a witness in this case.”

It’s not easy being a judge when the scope of the record before you consists of conclusory government assurances that everything is just hunky-dory.

Federal prosecutors said in a legal filing that the witness’s appearance “would be entirely voluntarily.” They said he told the F.B.I. on various occasions since 2006 that he was willing to come to the United States to testify. But the judge noted that the witness was originally arrested by Tanzania, flown to a distant location, held there for days and questioned by the Tanzanian police before the F.B.I. questioned him.

Of course, rather than see this as a negative, one could view the time the witness, apparently named “Hussein,” spent with the FBI as a bonding opportunity, a chance to authentically engage, get to know one another, appreciate the great joys of the American way of life. 

The defense has been less sanguine.  The judge isn’t quite sure which way to go.  He’s already refused to dismiss the case on the basis of speedy trial and his treatment by the CIA.  To the extent he finds himself neck deep in a pile of government poo, it’s his own choice.  It doesn’t have to be this way.

The attempt to defend, not to mention decide, this case presents the dilemma created by this hybrid form of prosecution, where an accused is to be prosecuted according to some of the rules, but under constraint of secrecy.  One might be more precise to call it a bastardization of process, where both the defense and the judge are denied all the really good, important information and then told to proceed. 

Is it fair?  Is it adequate?  Does it comport with basic due process?  Did the government torture its witness into cooperation?  We look to the judge to conduct a fair trial.  The judge has no one to look to except the prosecution, and the only thing the prosecution has to say on the subject is “trust us, judge.”

The defense is working with two hands and three feet tied behind its back.  So what else is new?  But it doesn’t have to be that way.  Should the government refuse to disclose classified information, the option isn’t that the defense simply suck it up, but rather that the court hold it inadmissible.  The deal could be, comply with the same process as would be the case in any criminal prosecution or be precluded.  Or the deal could be, fly blind and throw the core of due process out the window.

Judge Kaplan has ordered a hearing to determine whether Hussein should be allowed to testify against Ghailani.  What he plans to do when the government’s evidence consists of an agent giving his personal assurance that everything is just fine, and not to worry his pretty judicial head about it, is another matter.  Judge Kaplan may not be a pushover for the government, but then, this isn’t going to be an easy case to deal with, no matter what. 

But hey, we’re in a war against terrorism.  That changes everything.