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Federal judge allows 'secret evidence' in al Qaeda trial

A judge for the US District Court for the Western District of Kentucky [official website] on Wednesday allowed "secret evidence" to be used against an Iraqi refugee for terrorism charges, finding probable cause that he is "an agent of a foreign power." Mohanad Shareef Hammadi is charged with attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer weapons to terrorist organizations, specifically al Qaeda [JURIST news archive]. Judge Thomas Russell, after assessing all of the prosecution's files, ruled that Hammadi's attorneys may not review warrants and information gained by surveillance, in addition to withholding that information from the actual trial. The prosecution obtained the information under the Foreign Intelligence Surveillance Act (FISA) [text], a law used primarily to collect intelligence on foreign agents and foreign terrorism suspects. Hammadi's attorney is pursuing a plea agreement [AP report]. Hammadi is set to go to trial on July 30.

The Senate Armed Services Committee [official website] on Wednesday finally agreed on a controversial detainee provision of the National Defense Authorization Act for 2012 [SB 1867, PDF] in November that governs the handling and prosecuting of suspected al Qaeda [GlobalSecurity backgrounder] detainees. The provision allows the military to have complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Issues of "secret evidence" have been broached in other courts as well. Last year, the UK Supreme Court [official website] ruled [JURIST report] that secret service organizations cannot withhold evidence from opposing parties nor conduct closed trials. The appellants, secret service organizations including MI5 [official website], appealing a May 2010 ruling [JURIST report], requested the creation of a "closed material procedure," saying the disclosure of their evidence to the appellees, former Guantanamo detainees, would be contrary to the public interest. The court rejected this idea, citing the public interest immunity (PII) doctrine as more than suitable for classified information as evidence, and that it was not in the judiciary's power to allow or enforce a new doctrine.

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