Academic journal article Albany Law Review

Addressing the Balance: Restructuring Cipa and Fisa to Meet the Needs of Justice and the Criminal Justice System

Academic journal article Albany Law Review

Addressing the Balance: Restructuring Cipa and Fisa to Meet the Needs of Justice and the Criminal Justice System

Article excerpt


The criminal adjudicative process consists of numerous provisions that protect the defendant from the overarching power of the State. (7) Within the penumbra of provisions that defendants have access to are the rights to a speedy trial and an impartial jury, to confront witnesses, have counsel, (8) and the right against self-incrimination. (9) Terrorism-related trials are slightly different from conventional criminal cases. (10) These trials are furthermore affected by CIPA, whereby both the government and the defendant have to abide by specific guidelines as to how to both preserve the integrity of the defendant's due process rights and maintain national security interests. (11) Thus, the invocation of CIPA in terrorism-related cases seemingly creates a balancing test between defendants' Fifth and Sixth Amendment rights and the security of the state. (12)

The use of CIPA during the adjudicative process prevents defendants from "graymail[ing]" the government into reducing or dropping the charges against them in order to preclude them from disclosing secretive or sensitive information. (13) These situations usually arose, however, from those involved in the Intelligence Community ("IC") presenting or threatening to present information that they had access to via their capacity within the IC. (14) Nonetheless, the government has the authority to prevent such information from ever being used in court proceedings. (15) Yet some argue that this infringes on a defendant's Fifth and Sixth Amendment rights, while leaving the door open to certain government abuses of authority. (16) Similarly, FISA poses other issues concerning the collection and dissemination of intelligence for prosecutorial purposes. (17)

In Part II, this article examines both CIPA and FISA historically. This section also examines the procedural mechanisms that guide both CIPA and FISA and how they comport and differ with conventional criminal procedure. Part II will also discuss materiality standards, and what constitutes evidence and information that is "material" to a defendant in all criminal cases. Part III provides a case example and analysis of the tenuous application of FISA and CIPA in United States v. Abu-Jihaad. (18) This section does not contend that either the district or circuit courts were wrong, but rather, merely contends that there is difficulty inherent in applying both FISA and CIPA to terrorism prosecutions.

Part IV discusses the current literature on CIPA and FISA reform and what should be done with each Act moving forward. This part considers various recommendations offered by others and adopts in part some of these recommendations while proffering its own specifics. Specially, this article advocates for the restructuring of the purpose of FISA, as well as its provisions, in order to make it more amenable to criminal prosecutions, while also making declassification procedures under it more robust and efficient. Furthermore, this part also argues that CIPA needs to be altered to allow for the participation of defense counsel in ex parte proceedings to strengthen the adversarial process. Last, this part argues that there needs to be more independent and external oversight and transparency concerning the use and issues related to the application of FISA in terrorism and national security-related prosecutions. Part V briefly concludes and summarizes the arguments of the article.


A. Overview of CIPA and FISA

There is great debate about whether our current counter-terrorism policies are effective, or whether they are actually causing more harm than good. (19) However, many of these arguments specifically concern policies that prevent the criminal act of terrorism, not policies relating to due process rights of terrorists. (20) This is even more evident in the fact that much of the post-9/11 legislation has attempted to significantly curb terrorists' legal rights. …

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