Sunday, October 13, 2002

The Need to Test Evidence
The real threat to civil liberties after Sept. 11 doesn't come in cases like the Lackawanna six, where the strength of the circumstantial evidence will be examined in a trial. Rather, it comes where suspects are detained for months or longer, waiting for the evidence against them to be tested in court. Consider the hundreds of immigrants detained since Sept. 11. Some are held in legal limbo because, say, they stood behind Mohamed Atta, the suspected leader, in line.

In the case of Mr. Padilla, the government has gone further, insisting that the evidence is secret, and no judge or jury should ever have the chance to review it. "In cases involving the detention of immigrants and enemy combatants," said Stephen Gillers, a professor at New York University Law School, "the government's position is: `if the circumstantial evidence satisfies us, we can lock this guy up as long as we want.' "

THE government's claim that Americans can be imprisoned indefinitely on its say so, without the evidence being reviewed by a neutral third party, creates an increased danger of mistaken identification based on innocent coincidences. While it seems unlikely Mr. Padilla was browsing the Web for a research paper on radiology, as long as the evidence remains secret, it is impossible to judge.