Professor Chesney served as the panel's moderator and, in that capacity, has prepared this summary. He wishes to thank Professor Ellen Yaroshefsky and Dean David Rudenstine for their hospitality. Special thanks also to Rachel Steamer for her assistance.
The "secret evidence" debate concerns one of the most intractable problems that can arise in litigation. On one hand, the United States government has an exceedingly strong interest in maintaining secrecy with respect to the sources and methods of its intelligence-gathering activities. On the other hand, individuals who are subjected to adverse government legal action have a similarly important interest in having a fair opportunity to contest the evidence against them. These interests often clash, and at times can appear irreconcilable-a veritable meeting of the irresistible force and the immovable object.
This tension is most visible in civil and criminal litigation in Article III courts, but this context poses relatively few threshold questions concerning whether the defendant actually has enforceable substantive rights that give rise to this clash. Other contexts may differ, however. Our panel was convened in recognition of this possibility, and tasked with addressing the tension between security and procedural fairness as it arises in a trio of non-Article III contexts: war crime trials carried out before military commissions; determinations of "enemy combatant" status carried out by Combatant Status Review Tribunals ("CSRTs"); and immigration law proceedings.
Toward that end, the panel was designed to include a diverse array of experts who were well-positioned to illuminate and debate the issue. The first speaker, David Cole, is a professor of law at Georgetown University Law Center. Professor Cole's expertise derives from his extensive involvement not only in the scholarly study of civil liberties-related issues but also from hands-on experience litigating such cases, particularly but not only as they arise in the field of immigration law. He is a Page 28 frequent contributor to the ongoing public debate concerning the balance between liberty and security and has emerged as one of the most articulate and persuasive critics of the current administration.
The next speaker, Brian D. Boyle, served from 2003 to 2005 as the Principal Deputy Associate Attorney General in the Department of Justice. In that capacity, he played a central role in defending the policies of the Bush Administration in the context of terrorism and other national defense" related litigation. Previously, Mr. Boyle served for four years as an Assistant General Counsel in the Office of the Secretary of the Army. Mr. Boyle is now in private practice, as a partner with O'Melveny & Myers LLP, but continues to play an important role in the public debate through appearances such as this one.
The third speaker was Gitanjali S. Gutierrez, who currently holds the Gibbons Fellowship in Public Interest and Constitutional Law (sponsored by the firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione). In that capacity, Ms. Gutierrez serves as counsel for the Center for Constitutional Rights, an organization that is deeply involved in litigation contesting the legality of the detention of enemy combatants held by the U.S. military at Guantanamo Bay. Ms. Gutierrez personally represents two of these detainees, and is responsible for coordinating the efforts of several hundred attorneys representing other detainees.
The fourth and final speaker, Bradford A. Berenson, served as Associate Counsel to the President of the United States from January 2001 through January 2003, during which time he worked on a variety of legal, legislative, and policy issues associated with the war on terrorism. Since leaving the government to become a partner with Sidley Austin in 2003, Mr. Berenson has been among the most active and thoughtful defenders of the Administration's post-September 11 security policies.
As moderator, my first order of business was to frame the issues for the panelists. Given the contentious and unwieldy nature of the subject, this was no small task.
I began by emphasizing that the issue of secret evidence is, at one level, a question of procedure. Every dispute resolution system has its own procedure, including rules governing the evidence to be used for purposes of resolving factual disputes. Insofar as a given system must deal from time to time with national security-related disputes, that system's procedures will have to include rules for resolving the tension between the Page 29 government and individual interests described above. This is no easy task, as the participants in the panel on secret evidence in the context of Article III courts amply demonstrated. It is still more difficult outside the Article III context, where the rules applicable even to relatively mundane issues can be daunting in their unfamiliarity.
After flagging these concerns, I then turned to a brief survey of three particular non-Article III contexts in which the secret evidence issue has arisen. First, I discussed immigration proceedings. As scholars and practitioners in this area have long recognized, it is difficult to talk intelligently about national security law and policy without accounting for the critical role played by our immigration laws. Controversies surrounding the use of secret evidence in this context predate September 11 but are particularly pressing today.
The second and third contexts are both military in nature and both currently involve procedural systems that were erected subsequent to September 11. One-the CSRT system-concerns the question of how we determine (or perhaps how we confirm) that a person is within the category of persons potentially subject to military detention as a result of the current armed conflict. Formally adopted in July of 2004, shortly after the Supreme Court's decisions in Hamdi v. Rumsfeld1 and Rasul v. Bush,2 the CSRT process asks whether a particular detainee held at Guantanamo has properly been classified as an "enemy combatant."
I brought my remarks to a close with an effort to isolate the abstract essence of the secret evidence debate. I began with the observation that since ex parte evidentiary procedures lack adversariality, or at least lack complete adversariality, we have an ingrained suspicion of their reliability. But it does not follow automatically that the approach must never be tolerated in any context. There are at least some occasions when the government possesses intelligence that cannot be disclosed to the public or to the individual involved without a significant risk of revealing the information's source, thus endangering that source's future availability or exposing it to undue risk. In a subset of those occasions, the intelligence involved may be a necessary condition for the government to make its case in some particular dispute resolution context. And, in a subset of those instances, there may be circumstances in which the stakes are sufficiently high that it would be unwise to force the government to choose between foregoing action against the individual or else revealing the information.
In light of this real but limited possibility, I concluded, the question ought not to be framed in extreme terms such as whether secret evidence should always or never be permitted. Instead, the question should be whether the procedures adopted in a particular context are sufficient to navigate an appropriate middle course between the powerful individual and governmental interests that may be at stake. With that marker laid before them, the panelists then took to the podium.
David Cole was the first panelist to speak. Invoking the thesis of his recent book, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism,5 Professor Cole began his remarks by asserting that "what is done to foreign nationals often serves as a kind of wedge for what will be done in the future to the rest of us." According to Professor Cole, during times of national security crisis, the government has a track record of justifying the application of certain security- related measures to foreign nationals on the ground that they lack the rights of citizens. But over time, he contends, these same measures end Page 31 up being extended to citizens as well. In his view, the evolution of secret evidence procedures since September 11 bears out this argument.
Professor Cole then turned to the historical context of the secret evidence issue. He noted that approximately twenty-five cases in the 1990s involving immigration law proceedings used secret evidence, or ex parte, in camera evidence. Most of these proceedings dealt with the exclusion (and detention) of persons seeking entry into the United States. Having litigated thirteen of these cases himself, Professor Cole was in a good position to comment on them. In each case, he said, the government asserted that the persons involved were threats to U.S. national security but, in the end, all of them were freed upon court order: either after the aliens and their lawyers were at last given access to the secret evidence or after it became apparent that the court was going to order that such access be given. These cases and others like them, Professor...