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THE DANGERS OF SECRET EVIDENCE

Had it happened a few weeks earlier, the candidates' responses on the Jonathan Pollard spy case would have been dismissed as standard political duck-and-cover. But in the turbulent wake of the Wen Ho Lee prosecution, the hesitations expressed last week by Hillary Clinton and Rick Lazio sound not only plausible, but prudent.

The two senatorial candidates, appearing at a debate in Buffalo, had been asked about clemency for Pollard, the American convicted of spying for Israel. Neither answered the question directly, noting that secret evidence used to put him behind bars 15 years ago was restricted. Only those with high security clearances can view it.

It was a startling moment. Two candidates for high federal office implicitly acknowledged they have too little faith in government prosecutors to take the conviction at face value. Nor should they have; not with the rancid odor of the Lee case polluting the atmosphere.

The issue is trust. Government prosecutors presented Lee as just about the greatest threat to American security since Benedict Arnold tried to give away West Point, but when confronted by a tough-minded judge, they crumpled like a tar-paper shack in a thunderstorm, accepting a single guilty plea and dropping 58 other charges, including the most serious ones.

Lee had been kept in solitary confinement for nine months, sometimes shackled, based on what can only be called a lie. Prosecutors misled the judge and the American people about what Lee did and what its significance was to national security. Given that fact, how can anyone be comfortable judging the appropriateness of Pollard's treatment, or that of any person convicted on the basis of secret evidence?

This is not simply an academic question. Congress in 1996 passed a law that allows the Immigration and Naturalization Service authority to arrest, detain and deport non-citizens on the strength of secret evidence, not even available to the defendant.

That was not the case in the Pollard prosecution, but the evidence nonetheless remains secret and in the past week, Americans have once again been shown that government must be supervised. Unchecked, lacking the kind of oversight that public trials and a vigorous defense allows, state power is beyond the pale of unquestioned trust, especially when a handful of bureaucrats hold human liberty in their hands.

This is not a matter of politics or partisanship or ideology. It's simply a fact of human nature, one that our Founding Fathers recognized in carving the right to trial into our Constitution. In cases like Pollard's and the 25 others in which foreigners are being held under the 1996 law, we have drifted away from that bedrock principle.

An unlikely coalition of liberal and conservative congressmen is working to repeal that law. The government's abuse of the Constitution in the Lee case shows how important that goal is. No one has suggested that Pollard is innocent, but it is plain today that on the subject of clemency or any other issue involving any case where the evidence is secret, the government's word cannot be trusted at face value.

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