Secret Evidence and the Courts in the Age of National Security

AuthorEllen Yaroshefsky
PositionClinical Professor of Law and Director of the Jacob Burns Ethics Center at the Benjamin

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On December 5 and 6, 2005, the Benjamin N. Cardozo School of Law held a conference, "Secret Evidence and the Courts in the Age of National Security," to explore the use of secret evidence throughout the legal process-in investigative stages, in Foreign Intelligence Surveil- lance Act courts, in civil and criminal cases, in Article III courts, in immigration and military courts, and in Combatant Status Review Tribunals. Sponsored by the Floersheimer Center and the Jacob Burns Ethics Center at the Cardozo School of Law, the conference explored critical issues concerning the appropriate balance between national security and bedrock principles of our legal system: access to information to conduct an investigation, the ability to contest facts and present a defense, and the right of the press and public to scrutinize legal proceedings. Panelists addressed the extent to which these tribunals can accommodate legitimate national security concerns and whether alternative models are necessary and advisable.

The conference also confronted issues beyond proceedings in the courts. Journalists and lawyers explored a broad range of First Amendment issues related to journalists` access to information, privilege, and privacy, where the government asserts national security interests. Inter- national lawyers from Israel, Ireland and the United States government provided comparative perspectives on the use of secret evidence in the tribunals of other countries.

Two weeks after the conference, the press exposed the govern- ment`s secret program that authorized the National Security Agency`s warrantless surveillance program. This exposure catapulted the discussion of secret evidence to the fore of public debate. Most recently, secret evidence was the subject of congressional debate and public discussion in the detainee treatment bill passed by Congress in September 2006.

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The conference was organized into five panels, each of which was moderated by a leading scholar in the field. The panelists offered a wide range of viewpoints and inspired lively interchange among participants and with the audience. Summaries of each panel are contained within this volume, along with a number of articles prepared in conjunction with the symposium.

The keynote address was delivered by noted journalist Adam Liptak, of the New York Times. His remarks are reprinted in full in this volume.

The full proceedings are available from the Floersheimer Center online at

The conference`s first panel, Secret Evidence in the Investigatory Stage, moderated by Professor Peter Swire and summarized herein by panelist Jameel Jaffer, focused upon the government`s increased use of foreign intelligence surveillance, notably within the United States. Panelists traced the history of the Foreign Intelligence Surveillance Act, explored its constitutional and statutory...

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