Author:McCann, Wesley S.
Position:Classified Information Procedures Act, Foreign Intelligence Surveillance Act

    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.


    1. 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. (21) Thus, the question remains: do the policies control crime, or do they control specific populations of people? In any case, scholars have meticulously analyzed the legal arguments of whether terrorists held at extraterritorial facilities should even be tried in Article III courts--yet the Supreme Court has had the final say as to how this right is interpreted. (22) Moving forward, many scholars have begun to analyze both contemporary surveillance powers in United States law enforcement and national security efforts, (23) and the ability of the courts to combat terrorism (24):

      Several factors distinguish the war against al Qaeda from a large-scale criminal investigation or a broad, persistent social problem. First, al Qaeda represents a foreign threat that originates outside the United States. Al Qaeda's foreign element makes it different from homegrown terrorism, such as Timothy McVeigh's 1995 bombing of the Alfred Murrah Federal Building in Oklahoma City, which is an appropriate subject for the criminal justice system. Second, al Qaeda is unlike a crime organization in that it seeks purely political ends, rather than purely financial gain. Al Qaeda attacked the United States because it wants the United States to withdraw its military and political presence from the Middle East. Al Qaeda may seek financial gain to fund its terrorist operations to achieve that goal, but financial advancement is not its purpose. Third, al Qaeda has proven that it is capable of inflicting a degree of violence and destruction that crosses the line separating crime and war. Although the precise location of this line may not be certain, it seems clear that with approximately three thousand deaths and billions of dollars in damage, the September 11 attacks crossed this line. (25) What has been a continual struggle for our country is the balance between security and liberty. (26) The question that continually resurfaces is: "to what end is our conduct necessary?" While it can be argued that our punishment of suspected and confirmed terrorists is in need of systematic review, (27) the adjudication process is also in need of review. (28) At its core, CIPA is meant to procedurally regulate the admission of sensitive information in criminal courts. (29) Parallel to CIPA is FISA. (30) FISA was designed to procedurally delineate how foreign intelligence and counterintelligence could be conducted by agencies, (31) as prior jurisprudence and legislation had avoided the topic of how foreign intelligence gathering could be conducted. (32) However, some claim that FISA was flawed because of its assumption that Fourth Amendment protections would be subject to national interest. (33) Nonetheless, there are inherent obstacles in showing how the amended FISA (34) purports to injure individuals via their communications. (35) Clapper v. Amnesty International USA (36) demonstrates how difficult it is for plaintiffs to establish not only the nature of the injury (37) and that it be "impending," but also the connection of the injury to FISA; (38) hence why the Court ruled in this case that the plaintiffs lacked Article III standing. (39) While this mainly concerns the use of foreign surveillance of non-U.S. citizens that are "reasonably" located outside of the United States, (40) it also exemplifies how the legal lexicons that are used to protect national security are ostensibly and purposely broad. (41) Also, the Foreign Intelligence Surveillance Court ("FISC") has held that there is no public right to FISC records, under either common law or the First Amendment. (42)

      These concerns also coincide with the issue of courts overseeing the administration of justice via the structures meant to protect against the penetration of the intelligence community into the criminal justice system. (43) For one, there is the argument that there needs to be a wall between the intelligence community and law enforcement in an effort to prevent collusion between the two that would undermine the legitimacy of the criminal justice system. (44) However, law enforcement has already been engaging in intelligence gathering and surveillance through investigating organized crime, narcoterrorism, and drug operations. (45) Thus, FISA may actually further the penetration of intelligence gathering and the intelligence community into ordinary law enforcement in a manner that reflects, rather than amends, contemporary policing. How does this translate to the court system? Are courts meant to provide a meaningful check on these intelligence and data collection devices, or should their job be the conventional application of the law? If one were to look at the FISC, there would seem to be an abhorrent lack of judicial oversight of FISA warrants, in that close to 99.7% of all applications submitted by the Department of Justice ("DOJ") for surveillance purposes are approved. (46) Nonetheless, this process could be rigorous than is evident, but given that lack of transparency, it is easy to see this process as trivial. Overall, district courts in general may be providing a more adequate check on the procedures and application of both CIPA and FISA, as they are responsible for examining the lawfulness of the surveillance, and the conformity of the surveillance to the authorization. (47) Again, however, district courts are tasked with balancing the ever-present dichotomy within the criminal justice system: balancing social order and security with individual liberty. (48)

      This is a complex issue, since courts already provide checks on law enforcement through the administration of criminal procedure laws, as well as hearing violations of due process claims. (49) However, what seems to be missing from most of the cases involving either FISA or CIPA is the idea that judges are also supposed to question the legitimacy of the rule of law that has been arguably expanded under the executive branch to further the aims of counter-terrorism and global surveillance. (50) There is a mounting...

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