American Justice – Don’t Allow Defendants’ Access to Exculpatory Evidence

     Abu Ghraib Prison

American federal, state and local governments are beginning to earn a reputation for secrecy, efficiency at the expense of justice, hiding behind the “national security” ruse to avoid embarrassment and understaffing public defenders/investigators for those who cannot afford a lawyer. In our system of justice, for most people accused of a crime, it is effectively the prosecutor who determines the fate of a defender, guilty or innocent. With conviction rates in the high 90% range for federal cases and only slightly lower for state prosecutions, criminal justice has mostly devolved into world of plea bargains under a threat of a much longer sentence if a defendant, often with an inability to pay for a good defense, has the audacity to seek a full trial. See my January 18, 2020 Innocent, Broke and without Hope blog for more.

Prosecutors are focused on winning and almost never fairness. Police misconduct has often been swept under the rug, including planting evidence and making “witness” deals with clearly mendacious individuals. But absolutely nothing can compare to the “judicial” outrage of those “terrorists” who have been incarcerated at the detention facility at Guantanamo Bay, Cuba – presumably free of normal constitutional protections since the “trials” are taking place outside of the United States. There is obviously no practice of a sixth/fourteenth Amendment speedy trial or equal protection under the law at Gitmo. Some purported terrorists have sat in that prison for almost two decades without a trial. Some have even sought justice in foreign courts.

Most of the detainees have, over the years, been released. Those few that remain, most probably guilty, have faced torture – mislabeled “enhanced interrogation” – while in our custody, albeit usually in their pre-Gitmo captivity. Some at our Abu Ghraib prison in Iraq. Others in “black sites” in friendly eastern European facilities, such as one purportedly in Poland. Waterboarding. Sleep deprivation. Hanging naked by their arms. Humiliation. With a little bit of physical beating thrown into the mix. When appointed lawyers for these “defendants” want to introduce evidence of this harsh and unlawful (according to international law) treatment, US prosecutors have denied access to the necessary information by invoking the necessity of protecting “state secrets.” As noted, some prisoners are seeking vindication in the courts of those nations that held such “dark sites,” such as Poland. The US is refusing to cooperate in those trials.

Nothing illustrates this catch-22 more than the case of Guantanamo Bay prisoner, Abu Zubaydah, who was subjected to brutality, as CIA interrogators pushed him for information. Writing for the October 7th Los Angeles Times, David Savage explains this incredible and clearly unjust case, which has made its way up to the US Supreme Court even before a trial has truly commenced: “[The issue is whether:] the U.S. government can prevent court testimony that describes the CIA’s brutal treatment of alleged terrorists captured in Pakistan after the Sept. 11 attacks.

“This is hardly a secret. Justice Department lawyers agreed it is ‘public knowledge’ that certain ‘high value’ prisoners were held at ‘black sites’ overseas and subjected to so-called enhanced interrogation techniques. Many of these techniques were widely seen as torture… A former president of Poland even acknowledged the existence of the CIA site there in news interviews. But the Department of Justice lawyers urged the high court to invoke the ‘state secrets privilege’ to block two former CIA contractors from telling Polish prosecutors what happened at the sites, since U.S. officials have refused to confirm their existence.

“Acting U.S. Solicitor Gen. Brian Fletcher said it would be a ‘serious breach of trust’ if the U.S. courts cooperated in confirming the black site was in Poland. He said judges should defer to U.S. officials on matters of national security… The case of U.S. vs. Abu Zubaydah is a test of how far the high court will go to shield the executive branch — past and present — from accountability in the courts for possible abuses and wrongdoing. In this instance, however, it is a Polish court looking into the allegations of torture… Some justices wondered how this could be decided as a matter of state secrets… ‘At a certain point, it becomes a bit farcical ... if everybody knows’ the supposed secret, said Justice Elena Kagan. ‘Maybe we should rename it or something. It’s not a state secrets privilege anymore.’

“Abu Zubaydah was shot and captured in Pakistan in 2002, and U.S. officials wrongly believed for a time that he was a close associate of Osama bin Laden who could reveal the next plot to attack this country… When he revealed little, he became the CIA’s first victim of its brutal post-9/11 methods for seeking to extract information.

“For 83 times in one month, he was strapped to a board while water was poured into his mouth and nose, according to the Senate Select Committee on Intelligence. The aim was to simulate drowning. He was hung naked from hooks on the ceiling, spent 11 days in a tiny coffin, was slapped, thrown against a wall and deprived of sleep for 11 consecutive days. He lost an eye and since 2006 has been locked up at the U.S. military prison at Guantanamo Bay, Cuba, facing no charges but given no opportunity to speak about what happened to him.

“The worst moment for the Justice Department lawyer came near the end when Justice Neil M. Gorsuch pressed him to explain why Abu Zubaydah has been denied that right… ‘Why not make the witness available?’ he asked. ‘What is the government’s objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?’… In response to Gorsuch, Fletcher said the Guantanamo prisoner could speak about the conditions of his confinement there but not about ‘classified information’ and other matters.

“‘I’d just really appreciate a straight answer to this,’ Gorsuch said. ‘Will the government make the petitioner available to testify as to his treatment during these dates?’… Fletcher said he could not say. ‘I cannot offer that now because that’s a request that has not been made.’… Gorsuch said he should check further and submit an answer to the court.

“The state secrets privilege is not written in the Constitution or federal law, but the Supreme Court invoked it in 1953 to shield military secrets from being revealed in a lawsuit over the crash of an Air Force plane that was carrying secret electronic equipment. The widows of three men who died had asked to see the accident report. Decades later it was released, and it showed the crash was caused by an engine fire and revealed nothing about secret equipment.

“The case before the court began in 2010 when lawyers for Abu Zubaydah filed criminal complaints in Poland and before the European Court of Human Rights seeking to expose what happened to him. When a Polish prosecutor asked the Guantanamo prisoner to submit evidence, U.S. officials said he was being held ‘incommunicado for the remainder of his life.’”

The reputation of the United States for equal justice is beyond tarnished. Abu Ghraib and Gitmo are just icing on a cake that has exposed Iran Contra Scandal during the Reagan Administration, the CIA clandestine efforts to topple leaders in Chile, Nicaragua, and Iran, to name a few, and the efforts of the George W Bush administration to justify torture as merely “enhanced interrogation techniques,” a policy reversed quickly under the Obama Administration. The Trump policies (not completely rejected by President Biden) on our southern border didn’t help our reputation. We have long since lost the moral high ground to complain about human rights violations, however horrific, in countries like North Korea and China. But we still complain.

I’m Peter Dekom, and I wonder if we have forever relinquished any hope of restoring our now long-lost commitment to equal justice under the law and whether we even care about getting that back.