As a lawyer, I had to study a case name Brady, which is the seminal case in law school on jurisprudence dealing with Discovery. Discovery simply is the process of sharing certain items of an evidentiary nature between the opposing counsels - it is the cornerstone of our adversary system. With that said, some lawyers from the American Civil Liberties Union (ACLU) and the John Adams Project are being investigated for leaking information they received through the Discovery process.
The John Adams Project was established to provide lawyers for those alleged terrorists and who were being held at Guantanamo without the benefit of counsel. The investigation is focused on photos of the CIA interrogators that were found among the belongings of some of those accused of terrorism; this means that pertinent, personal information was supposedly given to these alleged terrorists… placing the CIA operatives in harms way.
An apt civilian example would be like the mob or gang bangers getting their hands on information belonging to undercover cops. The ACLU lawyers’ rebuttal is that those accused with engaging in terrorism and housed at Guantanamo were given the pictures of the CIA operatives so that they might identify those who allegedly tortured them.
This is the dilemma that the Federal Court is facing: were the ACLU lawyers in the right to give their clients the pictures and potentially putting these men and women in harms way? Or was this a necessary legal strategy used so that the ACLU clients be able to identify those, who allegedly, tortured them? This is a case of first impression… meaning that the court has never faced a situation like this. The closest we came was during the Nuremberg trials… but the early version of the CIA, the Office of Strategic Services, (OSS), operatives who provided the evidence for those historical trials were not exposed. The problem is that these alleged terrorists do not fight under a country’s flag, and moreover, all of them can claim, without empirical evidence, that they were tortured. The other issue is that once these CIA operatives are exposed, they are no good to the CIA.
If I had to choose what to do in this dilemma - I would err on the side of caution. No way would I support or expose CIA operatives; especially for those who weren’t born in this country or citizens. The nature of intelligence is described in one of its names – cloak and dagger… meaning that no one should be privy to who they are. Our Constitution, as brilliant as it is, providing protection for our rights, is not suicidal and some rights are not absolute. I know that there are those who will vehemently disagree with me on this issue – but that too is a right afforded under our Constitution.
ACLU Lawyers Are Being Investigated For Allegedly Leaking CIA Operatives Information to Prisoners at Guantanamo
There does not appear to be any dilemma. Woolmington v DPP established the presumption of innocence – these prisoners enjoy this status and it is prejudicial to argue that showing them pictures of their alleged torturers would in any way endanger anyone, as it implies that they are guilty (and ongoing threats) without evidence to that effect being introduced.
ردحذفOf course, if torture did occur, showing their victims these pictures might well endanger the guilty…and even, perhaps, exalted persons in political position.
We recognize that some of these men may, in fact, have done criminal acts, and that this, if true, is yet to be established. We also recognize the fundamental principle, recently expressed as Blackstone’s Formulation, but which has express origins in several of the roots of our Law, that it is "better that ten guilty persons escape than that one innocent suffer".
These origins lie deeply in our civilization, being found in, among other sources, Genesis “And Abraham drew near and said, Wilt thou also destroy the righteous with the wicked?... That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes...
And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten's sake.”
In Maimonides commenting on this passage from Genesis as well as on Exodus "the innocent and righteous slay thou not" where he argued that executing an accused criminal on anything less than absolute certainty would progressively lead to convictions merely "according to the judge's caprice. Hence the Exalted One has shut this door" against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death."
In Fortesque's De Laudibus Legum Angliae "one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally."
Increase Mather opined in relation to the Salem Trials "It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned."
Franklin too expressed this concept, saying that "it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer”.
But more authoritarian personalities, persons outside of our legal traditions and civilization, are supposed to have taken the opposite view; Bismarck is believed to have stated that "it is better that ten innocent men suffer than one guilty man escape;"PolPot and Wolfgang Schauble have made similar statements. Evidently, now, so has the US.