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The fundamental question of "guilty beyond reasonable doubt" is shattered. To say the least, it drastically undercuts protections in the jury system of the United States.
Conversely, evidence that might exonerate me, and prove my innocence, could be considered "secret and classified" as well. My attorney and I could be prohibited from knowing of its existence or using it in my defense. Even if that evidence or witness statements tossed out the whole case, and saved me from years in prison, I would not be entitled to know of its existence or present it to the jury.
Collins: This sounds like Franz Kafka's "The Trial" combined with the Queen of Hearts in "Alice in Wonderland." How did you conceptualize your experience at the time?
Lindauer: The outstanding blog, Welcome Back to Pottersville published a headline that I loved: Franz Kafka, Meet Susan Lindauer.
Oh yes, I was floored. I know the Constitution. I cherish it, in fact. I could not believe such a thing would happen to somebody like me, with my education from Smith College and the London School of Economics, and all of my community resources. I mean, if the government could do this to somebody like me, what could they do to somebody who has nothing? It's a frightening thought.
Above all, I despised the Assistant US Attorney, Edward O'Callaghan, who prosecuted my case. Numerous times I correctly told the Court that the FBI had verified my story and Mr. O'Callaghan was falsifying his claims about the availability of witnesses to authenticate my story. He flat out lied about my identity and activities to a senior federal judge. I mean, come on. We interviewed those witnesses, too. We know what they told the FBI.
And so I kept challenging the Court that nobody had to take my word for anything. I challenged the Court to subpoena the witnesses and question them directly under oath. For FIVE YEARS, I told the Court that all questions could be cleared up in ten minutes, with a simple pre-trial evidentiary hearing.
(Part three of this interview focuses on that issue.)
Collins: Back to the "secrecy rules," How did those work in trial preparation?
Lindauer: Within the category of "secret evidence," the law pretends to establish a safeguard for defendants by allowing two levels of secrecy.
Under the main category of secrecy, both the attorney and defendant are prohibited from laying eyes on evidence or witness statements. The Prosecutor always retains the right to deny access on the grounds of national security.
A sub-section of the Patriot Act allows the defense attorney to petition the government for a security clearance in order to review some parts of the "secret evidence." In reality, the process drags out for many months, while most defendants languish in prison waiting for trial. (And because the case involves the Patriot Act, they're frequently detained in solitary confinement.) Getting clearance can take six months to a year, costing the Defense valuable time to review the evidence or plan a rebuttal.
A security clearance does not automatically guarantee access to evidence, however. Depending on their backgrounds, different attorneys qualify for different levels of security clearances. For example, an activist attorney with a history of pro bono cases involving the ACLU or something equally subversive, like Greenpeace, might qualify for a very low security clearance, because their career choices and previous cases might be perceived to threaten the State. So one attorney might have more or less access to secret evidence than another. But you can't know until the security clearance review is completed.
Hope is vain, however. That safeguard is mostly irrelevant and procedural.
To illustrate that point, in five years under indictment, I had two separate attorneys with very different levels of security clearances, including a former federal prosecutor, the outstanding Mr. Brian Shaughnessy of Washington, DC, who regularly handles the most high level and complicated security cases. Neither attorney was ever able to determine what those two "secret charges" were. Neither attorney ever saw the "secret evidence."
More disturbingly, the attorney is strictly prohibited from revealing any part of that "secret evidence" to the Defendant. The Defendant cannot see it or know about it, and therefore cannot provide an effective response to the attorney to rebut it. Thus, ironically, the Patriot Act handicaps the defendant's ability to assist in the preparation of their Defense strategy.
