Panel Report: National Security Secrecy in the Courts: a Comparative Perspective from Israel and Ireland

AuthorPeter Raven-Hansen
PositionGlen Earl Weston Research Professor of Law, George Washington University Law School.

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"Everything changed on September 11." This is the ubiquitous tag line for that dark date, which suggests that counter-terrorism policy, as well as counter-terrorism law, started afresh on September 12. The implication is not only that the U.S. law changed but also that the U.S. invented the rule of law response to terrorism after September 11.

It did not. Terrorism had previously posed a threat to more than half-a-dozen Western democracies operating under the rule of law, and the law of each responded to the threat well before September 11. Israel has been threatened by terrorist attacks since its creation, and the threat simply intensified after the start of the Intifada in 2000.1 The United Kingdom and Ireland faced the threat of terrorism from IRA splinter groups for decades prior to 2001.2 (Indeed, as James MacGuill of this panel noted, "[d]epending on the personal or political tradition from which you view events," political violence has characterized the English- Irish relationship "for well in excess of 500 years prior to the foundation of the present Irish State in 1922.") Germany (then West Germany) faced attacks from the Baader-Meinhof Gang, also known as the Red Army Faction, for almost three decades, including the kidnapping and murder of prominent businessmen and officials.3 Italy faced a similar threat from the Red Brigades, including the abduction and murder of its Page 64 former Prime Minister, Aldo Moro.4 France experienced terrorism growing out of its war in Algeria and the later civil war in Algeria.5 Spain has seen over 800 of its nationals killed in Basque-related terrorist violence over the past forty years.6 After the terrorist attacks on commuter trains in Madrid in 2004, Spain now also faces threats from terrorists apparently inspired, if not organized, by al Qaeda.

What these Western democracies responding to terrorism had in common is not the same legal system, same culture, or same terrorist threat. It is that each, like the United States, operates under the rule of law. They have, therefore, all faced the same question that the September 11 attacks highlighted for this country: how to use the law against terrorism without compromising it. Given the inevitable relevancy of sensitive national security information to the prosecution of terrorists7 in civilian criminal courts, they have also all faced the sub-question discussed by this panel: how the law should accommodate secret evidence in the prosecution of terrorists.

To explore this question, the conference invited panelists from Israel and Ireland, as well as from the United States. The first speaker, Gadi Tasfrir, is the senior deputy to the Northern District Attorney of Israel. Mr. Tasfrir is a prosecutor in Nazareth, a diverse region in northern Israel, and has extensive experience with secret evidence from the prosecutor's side of the "v." The next speaker, Ami Kobo, offers a perspective from the other side of the "v.", as Deputy National Defender of Israel. Mr. Kobo currently works on the legislative agenda of the Defender's office. Our third speaker, James MacGuill, a defense lawyer in Ireland's "special courts" for terrorist prosecutions, provides a defense Page 65 perspective on the cumulative impact of a variety of special rules and legal doctrines adopted for terrorist prosecutions in Ireland. Our final speaker, Gregg Sofar, is the Director of the Office of Justice for Victims of Overseas Terrorism in the United States Department of Justice. That office was recently created to pursue criminal cases in which Americans have been killed in terrorist attacks abroad. Mr. Sofar also draws upon eleven years of prosecutorial experience as a Manhattan Assistant District Attorney for contrasting the Israeli and Irish treatment of secret evidence in counter-terrorism prosecutions with the U.S. treatment.

I Framing the Issues

Because all of the panelists are lawyers in their countries' criminal justice systems, the panel focused strictly on how considerations of secrecy impact the system in general or specialized criminal courts. Drawing on the U.S. experience (on which I will elaborate below, in setting the context for the panelists' answers), I posed four questions to the panel.

First, does the system in which they operate allow the prosecution to make its case using secret evidence, not disclosed to the defendant, or, in some cases, to his lawyer? In other words, can a terrorist be criminally convicted on the basis of secret (in the United States, typically classified) evidence?

Second, does the system allow the criminal defendant in a terrorism prosecution to access or use secret evidence in his defense? Such evidence is usually held by or available to the prosecutor through his intelligence community. In the United States, the question arises when the defendant has the right, under Brady v. Maryland,8 the Jencks Act,9 or rules of discovery in criminal cases,10 to secret evidence held by the government.

Third, does the system require a public trial in a terrorism prosecution? To put it more broadly, can the court close any part of the in- court proceedings to the public and seal any part of the resulting record, whether at trial or on appeal? Although the defendants themselves may Page 66 have a procedural right to have the public attend proceedings, this question also raises the possible rights of third parties-including, most prominently, the media-to attend and observe.

Fourth, and finally, have secrecy concerns in the criminal prosecution of terrorists changed the rules of ordinary criminal procedure applicable in non-terrorism cases or even spawned an alternative system of justice, such as military trials? This question naturally overlaps with a bigger one: which is the better alternative for preserving the rule of law in a society trying to use law against terrorism?

II The Panel's Answers
A Secret Evidence for the Prosecution

The U.S. answer to the first question is often asserted in ringing judicial pronouncements in both civil and criminal cases. An "immutable" principle of our jurisprudence is that "where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."11 Our system is wary of "one-sided determination[s]"12 and follows the "firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions."13 These truisms apply also to civil cases and even in many administrative proceedings, whenever they purport to employ the adversary process for fact-finding, because "the very foundation of the adversary process assumes that the use of undisclosed information would violate due process because of the risk of error."14 In criminal cases, the Sixth Amendment requirement that the defendant "be informed of the nature and cause of the accusation; [and] to be confronted with the witnesses against him"15 only underscores these truisms.16

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Unsurprisingly, if disclosure of evidence is the foundation of an adversarial system, both Israel and Ireland similarly prohibit government prosecutions based on secret evidence. Mr. Tasfrir was unequivocal in asserting that no prosecutor in Israel "can base his trial or his case on secret evidence." Mr. MacGuill generally agreed: the answer to whether secret evidence can be used is "absolutely not-grossly repugnant, deeply offensive to anyone who wants a fair trial."

On closer inspection, however, Irish law does provide an opening for such evidence. The Offences Against the State Act17 outlaws membership in an unlawful organization. Organizations are designated unlawful by ministerial decree, but an accused's membership in the organization is proven, in the first instance, by police testimony. Mr. MacGuill asserted that cross-examination of a police witness, however, has been thwarted by the invocation of privilege regarding the source of the officer's knowledge of the accused's membership in the unlawful organization.

The Irish experience in proving membership in unlawful organizations may have an analogue in U.S. prosecutions for giving material support to foreign terrorist organizations.18 The fact that an organization has been so designated is an element of the "material support" offense, but the courts have consistently ruled that the defendant cannot challenge the validity of the designation.19 While these decisions rest in part on the right of the organization itself to challenge its designation, the evidence on which the government makes that designation may be Page 68 classified,20 and the process afforded the organization does not require the disclosure of the classified portions of the administrative record.21 Thus, although U.S. law does not permit secret proof that the accused gave material support to a designated foreign terrorist...

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