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Abstract

Classified information presents enormous complexities and risks in an American terrorism trial, whether in federal criminal court, a court-martial, or a military commission.  The discovery and trial rights of the defendant, national security concerns, and the American public’s traditional right to “every man’s evidence” create tensions at trial that are not easily resolved.  Congress created a new system for dealing with classified information at trial in the Military Commissions Act of 2009 (MCA 2009).  The MCA 2009, as written, provides a superior framework for the discovery, declassification, and trial use of classified evidence than is currently available in federal criminal terrorism trials or military courts-martial.

The MCA 2009 classified information procedures, are, however, doomed to failure by three intractable shortcomings in the military commissions at Guantanamo Bay.  First, Executive Branch agencies continue to conduct intelligence gathering operations against the Guantanamo Bay detainees and their defense counsel.  These operations create a host of ethical problems and discovery issues, as well as creating a constant stream of new classified information that must be dealt with in order to ensure fair trials by military commission for the detainees.  Second, Executive Branch policies and a protective order prevent detainees from introducing evidence about the interrogation techniques that were used against them to obtain statements and other information.  Even though the MCA 2009 would permit fully litigating these issues in a secure environment, free from public disclosure, Executive Branch agencies have decided that the personal experiences of these detainees is classified and cannot be discussed in court.  Thus, by fiat, the Executive Branch has frustrated Congressional intent, mooted many of the MCA 2009 classified evidence procedures, and ensured that there will forever be questions about whether the detainees received a fair trial in which they had an opportunity to fully defend themselves.  Third, because there is no separation of powers in the military commissions system, there is no independent judiciary to counter the nearly unrestricted power of Executive Branch intelligence agencies to control the flow of information at trial.

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