Senate should question Obama's DOJ appointees about using anonymous witnesses

While President-elect Barack Obama's initial picks for key Justice Department posts indicate a likely departure from the more radical counterterrorism tactics undertaken in recent years by the Bush Administration, one recent Texas case raises an issue I'd like to see his nominees questioned about during Senate confirmation hearings: Do they support the use of anonymous expert witnesses in criminal court cases?

That's what happened during the prosecution of five fundraisers for the Richardson-based Holy Land Foundation who were convicted last fall based largely on critical evidence given by an anonymous Israeli intelligence officer. Reported Texas Lawyer:

Defense lawyers for all five men say they will appeal the verdict to the 5th U.S. Circuit Court of Appeals. They will argue, among other things, that Solis should not have allowed prosecutors to call an anonymous expert witness to the stand at trial. Although the defense lawyers objected and asked the court to require the prosecutors to identify the witness, he was only identified at trial as "Avi," a representative of the Israeli government. In his testimony in court, Avi made allegations crucial to the government's case about a link between the Hamas leadership and zakat committees in the West Bank and Gaza that allegedly received HLF funds. "Zakat" in Arabic means the religious obligation to give alms. On appeal, the defense lawyers say they will argue that Avi's testimony violated the HLF defendants' Sixth Amendment due-process rights, because the defense lawyers did not have an opportunity to question the witness' credibility.

"This is the first trial in the history of the United States where that has been allowed to happen," says Joshua Dratel of the Law Offices of Joshua Dratel in New York City who represents El-Mezain.

Even Jacks says the unprecedented victory his team achieved was due, in part, to the unprecedented use of an anonymous expert witness, a point he expects to play a starring role in any defense appeal.

Anonymous Israeli spooks as witnesses? Next will we accept testimony in court from The Zohan? Or perhaps it will be okay for the defense to put on anonymous, exculpatory witnesses whose background prosecutors cannot know?

I definitely hope some senator asks Obama's Justice Department appointees whether they think that kind of evidence is appropriate and whether they'll pursue more cases using secret, anonymous experts.

I stopped watching the HLF case closely after I left ACLU of Texas and had missed this whole issue of anonymous testimony. (An earlier, first run at prosecution stalled out in a mistrial thanks to a deadlocked jury.) Especially given the Supreme Court's recent emphasis on re-sharpening the teeth of the Constitution's Confrontation Clause, this is a tactic I think should be abandoned by DOJ and will likely (rightly) be benchslapped out of existence by the appellate courts.

The outgoing US Attorney in Texas' Northern District hopes the Holy Land Foundation case becomes a model for pursuing terrorist financing. There may be other aspects of the case that deserve copying in other contexts, but the use of secret, unaccountable witnesses to make criminal cases is a tactic that should have been rung out with the new year.

RELATED: Jeralyn at Talk Left suggests an immigration related question for Obama DOJ chief-designate Eric Holder.