Academic journal article Harvard Law Review

Secret Evidence in the War on Terror

Academic journal article Harvard Law Review

Secret Evidence in the War on Terror

Article excerpt

On July 9, 2004, almost thirty-two months after President George W. Bush first authorized the use of military commissions to try suspected alien terrorists, (1) military commissions began formal proceedings as the government filed charges against Salim Ahmed Hamdan, (2) who allegedly served as Osama bin Laden's chauffeur. (3) Hamdan filed a habeas corpus petition challenging the lawfulness of his trial by military commission, (4) and in November 2004, Judge James Robertson of the federal district court in Washington, D.C. partially granted the petition, (5) thus bringing military commission proceedings to an abrupt halt. Noting that existing military commission rules allow the government to exclude the accused from proceedings and allow evidence that he will never see to be introduced against him, Judge Robertson wrote, "It is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court." (6)

Yet despite Judge Robertson's strong condemnation of the use of "secret" evidence, (7) the United States has long used such evidence in criminal prosecutions, military courts-martial and various immigration proceedings. For example, in Article III courts, the Classified Information Procedures Act (8) (CIPA) allows the government to substitute a summary of classified documents for the documents themselves, or to submit a statement admitting facts that the documents would tend to prove. (9) As a result, a criminal prosecution can go forward with neither the defendant nor his counsel ever seeing the actual classified documents. Military Rule of Evidence 505 largely mirrors CIPA and similarly permits the government to use substitution procedures in court-martial proceedings. (10) In the immigration context, the Attorney General may order the removal of an alien without even holding a hearing if he is "satisfied on the basis of confidential information" that the alien poses a threat to national security and that disclosure of the relevant documents would harm public safety. (11)

The use of secret evidence by the federal government in these and other contexts calls into question the basic principle that "evidence used to prove the Government's case must be disclosed to the individual." (12) Proponents of secret evidence argue that withholding classified information from the accused is necessary because its disclosure would jeopardize intelligence-gathering efforts in the field and dry up valuable sources of information. For example, the accused may learn of highly sensitive and actionable information that he or his counsel may then easily disseminate to others. Such a scenario is particularly dangerous if the accused is a member of a worldwide terrorist network, like al Qaeda. Critics of secret evidence, on the other hand, argue that undisclosed classified evidence violates basic tenets of due process, cripples the ability of attorneys to provide an effective defense, and opens the door to racial and religious prejudices. (13)

This Note examines the legal and policy considerations surrounding the use of secret evidence in military commissions. (14) Part I examines the doctrinal framework and constitutionality of using secret evidence in criminal prosecutions, military courts-martial, and various immigration proceedings. Part II then discusses the rules governing the use of secret evidence in military commissions and evaluates their constitutionality in light of the comparative contexts (discussed in Part I) in which the government has previously employed secret evidence. Applying the balancing test adopted by the Supreme Court in Mathews v. Eldridge, (15) the Part concludes that the existing rules are unconstitutional and violate an accused's right to procedural due process. Finally, Part III argues that given the infirmities in the military commission rules, they should be revised to conform to those governing secret evidence in domestic criminal prosecutions and military courts-martial. …

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