The ruling by a U.S. federal judge that the National Security Agency’s secret wiretapping program is unconstitutional strikes a small note of hope in what is otherwise a shameful time for American justice.
Government lawyers are proposing that U.S. citizens can be detained and then tried in secret trials – in absentia, in some cases – using secret evidence that the accused cannot see. If evidence is obtained by coercion, government lawyers contend that it should still be allowed as a basis for conviction, thus rejecting almost 300 years of Anglo-American jurisprudence.
Almost 50 years ago, Chief Justice Earl Warren wrote that the “insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar.” Unfortunately, these abuses are not familiar to the government lawyers who have circulated a draft of proposals that would have caused no notice in Nazi Germany or in the Soviet Union but that have never before been put forth in America.
The proposals provide that persons may be arrested and held indefinitely. There need be no sentence. No other civilized country permits such procedures. The United States has never before conceived of using them, neither during the two world wars nor during the Korean or Vietnam wars.
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