The Slow Erosion of the Adversary System: Article III Courts, Fisa, Cipa and Ethical Dilemmas

AuthorEllen C. Yaroshefsky
PositionClinical Professor of Law and Director of the Jacob Burns Ethics Center at the Benjamin N. Cardozo School of Law.

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    Ellen C. Yaroshefsky: Clinical Professor of Law and Director of the Jacob Burns Ethics Center at the Benjamin N. Cardozo School of Law. I thank each of the participants in the December 5-6 Secret Evidence Conference for their thoughtful presentations and their ongoing commitment to grapple with the significant issues raised at this conference. This article is an updated version of an article published in 34 HOFSTRA L. REV. 1063 (2006). All acknowledgements in that article are reiterated here.

Until recently, secret evidence was a relatively esoteric legal issue confined to a narrow range of cases and subject to few judicial opinions and scholarly articles. Within the last year, secret evidence-information of potential evidentiary value not shared with the defendant and often not shared with defense counsel1-has been placed in the fore- front of legislative and public concern as a consequence of the current Bush administration's post-September 11 program.

This administration, reportedly the most secretive in United States history, operates within a "culture of secrecy."2 The unprecedented scope of secrecy in intelligence gathering, detentions, decision-making, Page 204 data collection, and legislative implementation has recently received significant public scrutiny.3 Often justified as essential to preserve national security, enhanced secrecy is a steady evisceration of the transparency and accountability essential to a functioning democracy. It raises concerns about the proper functioning of our criminal justice system.

In the past few months, congressional debate and public scrutiny has focused upon whether secret evidence should be permitted in military commissions. Recent legislation permits the use of secret evidence against foreign terrorist suspects in such commissions if the disclosure of the information to the defendant "could reasonably be expected to cause identifiable damage to the national security."4 Any classified information withheld from the defendant will be provided to the defendant in redacted or summary form, only if such a presentation would not compromise "intelligence sources, methods, or activities, or other national security interests."5 Furthermore, in defending its policy of "extraordinary rendition" and the NSA Surveillance Program's interception of domestic phone calls in several lawsuits questioning the program's validity, the government has asserted the state secrets privilege, filed motions to prevent the plaintiffs' access to sealed, classified documents, and lodged classified documents for in camera, ex parte review.6

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The policies developed to fight the "war on terror" have necessitated that secret evidence seep into an increasing number of federal criminal prosecutions. In a recent case involving a conspiracy to fund a terrorist organization, the government justified its use of secret evidence because of the war on terror and out of deference to classified material from a foreign government.7 Information gathered from the NSA Surveillance Program was at issue in a recent money laundering case resulting from an FBI sting operation.8

Our criminal justice system is founded upon the fundamental due process principles that an accused is entitled to secure the effective assistance of counsel and to be able to confront the evidence against him. Yet, in a growing number of cases-notably those involving terrorism- related charges and in international drug conspiracies-this concept has been challenged by the use of secret evidence in criminal prosecutions. Upheld as constitutional and justified as essential to preserve national security, the use of such evidence raises profound questions as to appropriate balancing of security and liberty and threatens to make fundamental constitutional rights "negotiable."9

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I argue that the current practice which excludes security-cleared defense counsel from the decision making process about disclosure of the information that is of potential evidentiary value is neither necessary nor advisable. It undermines the ability of defense counsel to perform its essential role and, in so doing, shifts the balance in an untenable fashion within our criminal justice system.10 I make modest suggestions to maintain the proper functioning of the adversary system in cases that implicate secret evidence.

I Classified Information Procedures Act and Foreign Intelligence Surveillance Act in the Courts

The use of secret evidence, not necessarily a new phenomenon associated with the current administration, exists throughout tribunals in our legal system, whether in an immigration context, in combatant status review tribunals or in military courts.11

In a series of immigration cases in the late 1990s, the Clinton Administration utilized secret evidence-information not made available to the defense lawyer or the detainee-in seeking deportation or exclusion from Page 207 the United States.12 In one noted case, Kiareldeen v. Reno, a thirty-three year-old Palestinian was detained in an immigration proceeding for nineteen months based on evidence that consisted exclusively of hearsay allegations.13 The government claimed that he was "a threat to the national security" and that he was a member of a terrorist organization.14 At no point during his detention was he provided even the sketchiest details of the alleged threats or of the associations and relationships he supposedly had with terrorist organizations. At his immigration hearing, where he addressed these vague allegations as best he could without seeing any evidence, he testified that the likely source was his wife, with whom he was in a custody dispute.15 In the past, she repeatedly had made false allegations of domestic violence and terrorist ties.16 The trial court ruled in his favor, saying he had rebutted the charges, and released him on bond.17 On appeal, the court ruled that the reliance on secret evidence violated his due process rights because (1) it deprived him of meaningful notice and an opportunity to confront the evidence against him, and (2) exclusively hearsay evidence could not be tested for reliability.18 This was the third case in an immigration context holding that secret evidence is unconstitutional.19

In federal criminal cases, where fundamental Fifth and Sixth Amendment rights are at the core of our constitutional, adversarial system, there is greater scrutiny than in immigration cases. Nevertheless, the use of secret evidence is distorting the adversarial system.

A Fundamentals of the Adversarial System

In Article III courts, we presume that the defendant, through his counsel, has access to incriminating and exculpatory facts, has the opportunity to thoroughly investigate the case, to cross examine witnesses Page 208 and, if he chooses, to testify on his own behalf and to present witnesses.20 We expect and require the lawyer to mount a zealous defense.21 These fundamental ethical mandates for counsel are called into question in a growing number of criminal prosecutions, notably those that result from the work of intelligence agencies or other government agencies that classify information.22 In such cases, because information that is material and relevant is not readily available to the defense, the defendant is placed at a significant disadvantage in regards to case investigation, preparation, and presentation.

This is primarily the result of two statutes, the Classified Information Procedures Act ("CIPA") which governs the disclosure of classified information,23 and the Foreign Intelligence Surveillance Act ("FISA"), which addresses procedures for surveillance techniques to gather foreign intelligence information.24

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B Classified Information Procedures Act

CIPA was enacted to protect against "gray-mailing" or threats by government officials or intelligence operatives such as Oliver North, Wen Ho Lee, and John Poindexter, who were in a position to threaten to release confidential government information unless the charges against them were dismissed.25 The statute provided a mechanism for these defendants to utilize requested materials in their defense under a number of conditions-notably that carefully delineated information was subject to a protective order preventing its release.26 In these typically "insider" cases, the defendant previously had access to the classified information and the offense was for work-related conduct. In such cases, the government typically produces all the classified information to security-cleared defense counsel, and the defendant, who himself has security clearance for access to the classified documents, reviews the evidence with his lawyer. Consequently, CIPA works relatively effectively at the discovery stage to afford the defendant basic Fifth and Sixth Page 210 Amendment rights, while preserving the government's national security concerns.27

CIPA's purpose is distorted, however, by its use in what is termed "outsider cases," notably terrorism-related, international drug conspiracies, international defense contractor cases and others implicating foreign relations where the defendant never had and never will have access to the material.28 In this expanding category of cases there is no possibility of "gray-mailing;" the defendant cannot reveal classified information other than that provided in discovery.29

CIPA sets forth detailed procedures for "matters relating to classified information that may arise in connection with the prosecution."30 Where the government possesses...

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