Beyond interrogations: An analysis of the protection under the military commissions act of 2006 of technical classified sources, methods and activities employed in the global war on terror

Military Law Review

Volumn 192, Issue , 2007, Pages 81-115

  Mathews, Captain Nikiforos ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951936120     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (237)

1. 8 WRITINGS OF GEORGE WASHINGTON 478-79 (J. Patrick ed., 1933).
2. While "war" itself is used to describe virtually any struggle-including those pitched on the fields of athletic endeavor-it is most commonly understood to be the state of international or internal armed conflict.
3. See, e.g., JOINT FORCES STAFF COLLEGE, PUB. 1, THE JOINT STAFF OFFICER'S GUIDE 1997 app. O (1997) (defining war as "[a] state of undeclared or declared armed hostile action characterized by the sustained use of armed force between nations or organized groups within a nation involving regular and irregular forces in a series of connected military operations or campaigns to achieve vital national objectives").
4. Consider, for example, the definitive end of World War II with Emperor Hirohito's signature on the U. S. S. Missouri on 27 September 1945, or the symbolic and-for all practical purposes-military end of the U. S. Civil War with General Robert E. Lee's surrender at the Appomattox courthouse on 9 April 1865.
5. As the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission) noted: The problem is that al Qaeda represents an ideological movement, not a finite group of people. It initiates and inspires, even if it no longer directs. In this way it has transformed itself into a decentralized force. Bin Ladin may be limited in his ability to organize major attacks from his hideouts. Yet killing or capturing him, while extremely important, would not end terror. His message of inspiration to a new generation of terrorists would continue. FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 16 (2004) [hereinafter 9/11 COMMISSION REPORT].
6. The words of President George W. Bush in the wake of the September 11th attacks regarding the scope and expected duration of this conflict have held true: Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.... Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. President's Address to a Joint Session of Congress on the United States Response to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES. DOC. 1347, 1349 (Sept. 20, 2001).
7. The Department of Defense (DOD) has defined intelligence sources to include "people, documents, equipment, or technical sensors". U. S. DEP'T OF DEFENSE, JOINT PUB. 1-02, DICTIONARY OF MILITARY AND ASSOCIATED TERMS 269 (12 Apr. 2001, as amended through 12 July 2007) [hereinafter DOD Dictionary].
8. According to the DOD Dictionary, counterterrorism is defined as "[o]perations that include the offensive measures taken to prevent, deter, preempt, and respond to terrorism". Id. at 130. as used in this article, "counterterrorism" has the meaning ascribed to it in the DOD Dictionary.
9. As one commentator has noted, "[t]his is an unusual situation given that almost all war crimes and war-related offenses are prosecuted after the end of hostilities, when the need to protect national security information and safeguard participants in the trial is greatly reduced". Frederic L. Borch III, Why Military Commissions Are the Proper Forum and Why Terrorists Will Have "Full and Fair" Trials: A Rebuttal to Military Commissions: Trying American Justice, ARMY LAW., Nov. 2003, at 10
10. (responding to Kevin J. Barry, Military Commissions: Trying American Justice, ARMY LAW., Nov. 2003, at 1).
11. Military Commissions Act (MCA) of 2006, 10 U. S. C. S. § 948a-950w (LEXIS 2007) [hereinafter MCA]. The first conviction before a military commission convened under the MCA was that of David Hicks, an Australian trained by al Qaeda who pleaded guilty on 26 March 2007 to providing material support to a terrorist organization.
12. See William Glaberson, Plea of Guilty from Detainee in Guantánamo, N. Y. TIMES, Mar. 27, 2007, at A1.
13. 18 U. S. C. App. III (2000).
14. MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 505 (2005) [hereinafter MCM].
15. The drafters of the MCA decided to limit its protection of sensitive information to information that is actually classified, as discussed in greater detail below. See infra notes 27-31 and accompanying text.
16. See 10 U. S. C. S. § 949d (f) (2) (B).
17. See, e.g., HUMAN RIGHTS WATCH, Q AND A: MILITARY COMMISSIONS ACT OF 2006, at 4 (2006), http://hrw.org/backgrounder/usa/qna1006/usqna1006web.pdf [hereinafter HUMAN RIGHTS WATCH Q & A] (stating that the protection of classified sources and methods of interrogations, in particular, will make it "extremely difficult for defendants to establish that evidence was obtained through torture or other coercive interrogation methods");
18. HUMAN RIGHTS FIRST, ANALYSIS OF PROPOSED RULES FOR MILITARY COMMISSIONS TRIALS 2 (2007), http://www.humanrightsfirst.info/pdf/07125-usls-hrf-rcm- analysis.pdf ("[T]he administration has claimed that the so-called 'alternative interrogation techniques' used on 14 former CIA detainees now held at Guantanamo are classified.... The Government could seek to include hearsay testimony derived from these interrogations, claim that the techniques used are classified, and defense lawyers would have a hard time showing that evidence should be excluded because it was obtained through torture.");
19. Amnesty International, Military Commissions Act of 2006-Turning Bad Policy Into Bad Law, Sept. 29, 2006, http://web.amnesty.org/library/Index/ ENGAMR511542006 (stating that an accused's inability "effectively to challenge the 'sources, methods or activities' by which the Government acquired the evidence... is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the 'war on terror'").
20. Military Order of November 13, 2001, 3 C. F. R. 918 (2002) [hereinafter Military Order].
21. See U. S. Dep't of Defense, Military Commission Order No. 1 (21 Mar. 2002), 32 C. F. R. §§ 9.1-9.12 (2005) [hereinafter DOD MCO No. 1]. For instance, DOD MCO No. 1 set forth the number of military officers required for a panel, the powers vested in the presiding officer of the panel, and certain procedural safeguards afforded to the accused.
22. Id. §§ 9.4 (A) (2) - (A) (5), 9.5.
23. See 32 C. F. R. §§ 10-18 (2005).
24. DOD MCO No. 1 defined "protected information" to include: (A) information classified or classifiable pursuant to [Executive Order 12, 958, now Executive Order 13, 292]; (B) information protected by law or rule from unauthorized disclosure; (C) information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses; (D) information concerning intelligence and law enforcement sources, methods, or activities; or (E) information concerning other national security interests.
25. DOD MCO No. 1, supra note 16, § 9.6 (d) (5) (i).
26. See id. §§ 9.6 (d) (2) (iv), 9.6 (d) (5) (ii) - (iv).
27. 548 U. S.
28. S. Ct. 2749 (2006). Salim Ahmed Hamdan, a Yemeni national, allegedly worked as Osama bin Laden's bodyguard and chauffer. He was captured in Afghanistan in 2001 and was brought to Guantánamo Bay, Cuba, in 2002.
29. Id. at 2778. Specifically, the Court concluded that the commissions lacked requisite Congressional authorization; that Common Article 3 of the Geneva Conventions applies to detainees; and that the military commissions procedures deviated substantially from those applicable under the Geneva Conventions and courts-martial.
30. See id. at 2749. With respect to the lack of congressional authorization, the Court held that the power to create military commissions, if it exists, is among the "powers granted jointly to the President and Congress in time of war".
31. Id. at 2773. It further held that Congress' authorization to use "all necessary and appropriate force against all nations, organizations, or persons" involved in the September 11th attacks which was granted under the Authorization for use of Military Force, Pub. L. No. 1107-40
32. Stat. 224, § 2 (a) (2001), did not amount to a congressional authorization of military commissions.
33. Hamdan, 126 S. Ct. at 2775. Specifically, the Court stated: [W]hile we assume that the AUMF [Authorization for use of Military Force] activated the President's war powers,... and that those powers include authority to convene military commissions in appropriate circumstances,... there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ [Uniform Code of Military Justice].... Together, the UCMJ, the AUMF, and the DTA [Detainee Treatment Act of 2005] at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the "Constitution and laws, " including the law of war. Absent a more specific congressional authorization, the task of this Court is... to decide whether Hamdan's military commission is so justified.
34. Id. Note that congressional sanction of the use of military commissions to try offenders of the law of war, as a general matter, was not at issue in Hamdan, as the Supreme Court had already determined that Congress had sanctioned the use of military commissions.
35. Ex parte Quirin, 317 U. S. 1, 28 (1942) (pointing to UCMJ article 15, now UCMJ article 21, which states: "The jurisdiction [of] courts-martial shall not be construed as depriving military commissions... of concurrent jurisdiction in respect of offenders or offenses that by statute or by law of war may be tried by such... commissions."). Rather, what was at issue was whether the President was justified in convening the military commissions under the laws of war absent a specific congressional authorization.
36. See Hamdan, 126 S. Ct. at 2799 (Breyer, J. concurring) ("Nothing prevents the President from returning to Congress to seek the authority he believes necessary.").
37. 152 CONG. REC. S10, 420 (daily ed. Sept. 28, 2006);
38. see also Charles Babington & Jonathan Weisman, Senate Approves Detainee Bill Backed by Bush, WASH POST., Sept. 29, 2006, at A01. The House of Representatives passed the bill the following day, and the MCA was signed into law by the President on 17 October 2006. Upon signing the bill, the President noted: In the months after 9/11, I authorized a system of military commissions to try foreign terrorists accused of war crimes.... Yet the legality of the system I established was challenged in the court, and the Supreme Court ruled that the military commissions needed to be explicitly authorized by the United States Congress. And so I asked Congress for that authority, and they have provided it. President Bush Signs Military Commissions Act of 2006, Oct. 17, 2006, available at http://www.whitehouse.gov/news/releases/2006/10/20061017-1. html.
39. See, e.g., Agreement Is Reached on Detainee Bill, N. Y. TIMES, Sept. 21, 2006, at A-1;
40. R. Jeffrey Smith & Charles Babington, Senators Near Pact on Interrogation Rules, Wash. Post, Sept. 22, 2006, at A01. Finding middle ground with the President over how to deal with sensitive information in military commission proceedings was a concern for many Senators. For instance, Senator John McCain listed his priorities in the wake of Hamdan as follows: Ever since the Supreme Court announced its decision in the case of Hamdan v. Rumsfeld, I have made clear that my three primary goals for legislation authorizing military tribunals were: (1) Adjudicating the cases of detained terrorists in proceedings that are consistent with our values of justice, (2) protecting classified information, and (3) ensuring that our military and intelligence officers have clear standards for what is, and is not, permissible during detention and interrogation operations.
41. CONG. REC. S10, 275 (daily ed. Sept. 27, 2006) (statement of Sen. McCain) (emphasis added).
42. Those procedural rules were almost universally criticized by commentators both within and outside of the Judge Advocate community. See, e.g., Kevin J. Barry, Military Commissions: Trying American Justice, ARMY LAW., Nov. 2003, at 1;
43. Philip Allen Lacovara, Trials and Error, WASH. POST, Nov. 12, 2003, at A23 ("Further undermining the legitimacy of the process is the fact that the Defense Department's instructions for the military commissions grant broad discretion to the President and Secretary of Defense to close the entire proceeding, acting on undefined 'national security interests.'");
44. HUMAN RIGHTS FIRST, TRIALS UNDER MILITARY ORDER (2006), http://www.humanrightsfirst.org/us-law/PDF/detainees/trials-under-order0604.pdf.
45. See DOD MCO No. 1, supra note 16, § 9.6 (d) (5) (ii). Unlike those rules, the MCA does not allow for the exclusion of the accused from portions of his trial and does not permit the introduction of evidence before the commission without it being disclosed to the accused. Rather, it allows for the exclusion of the accused only for disruptive or dangerous conduct.
46. See 10 U. S. C. S. § 949d (e) (LEXIS 2007). In drafting the rules for exclusion of the accused, legislators appear to have paid particular attention to the Hamdan Court's statement that "at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him".
47. Hamdan, 126 S. Ct. at 2798. Legislators also apparently took to heart the concerns of senior Judge Advocates from the various armed services in this regard.
48. See, e.g., Standards of Military Tribunals: Hearing Before the H. Comm. on Armed. Servs., 109th Cong. (2006) (statements of Major General Scott Black, United States Army, Judge Advocate General ("I can't imagine any military judge believing that an accused has had a full and fair hearing if all the Government's evidence that was introduced was all classified and the accused was not able to see any of it.") and Brigadier General James C. Walker, Staff Judge Advocate to the Commandant U. S. Marine Corps ("I concur with my colleagues that if we get to a point where the sole evidence against an accused is classified, he must be able to see that evidence. That's just essentially one of those elements of a full and fair trial."). In an editorial, The New York Times, a vociferous critic of the military commission procedures proposed under both the MCA and the Pentagon rules, noted the significance of the compromises that led to "Mr. Bush's agreement to drop his insistence on allowing prosecutors of suspected terrorists to introduce classified evidence kept secret from the defendant".
49. N. Y. TIMES, Sept. 22, 2006, at A-20.
50. Safeguarding counterintelligence means was clearly on the Senators' minds in the weeks leading up to the passage of the MCA. Weeks before it was passed, Senator William H. Frist noted that the bill which became the MCA "protects classified information-our critical sources and methods-from terrorists who could exploit it to plan another terrorist attack". 152 CONG. REC. S10, 243 (daily ed. Sept. 27, 2006) (statement of Sen. Frist). Senator Levin added, "the bill does not permit the use of secret evidence that is not revealed to the defendant. Instead, the bill clarifies that information about sources, methods, or activities by which the United States obtained evidence may be redacted before the evidence is provided to the defendant and introduced at trial".
51. Cong. Rec. S10, 244 (daily ed. Sept. 27, 2006) (statement of Sen. Levin). Senator Lindsey Graham, a member of the Senate Armed Services Committee, remarked: "We're going to protect our classified information, and we're going to protect our methods and sources".
52. James Rosen, Graham Says Tribunal Bill Goes Too Far; Senator Upset By Clause to Withhold Relevant Evidence, MYRTLE BEACH SUN-NEWS, Sept. 9, 2006, at A1.
53. Classified information has been defined under the Classified Information Procedures Act (CIPA) as "any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security". 18 U. S. C. app. III, § 1 (a) (2000). CIPA defines "national security" as "the national defense and foreign relations of the United States".
54. Id.
55. Exec. Order No. 13, 292, 3 C. F. R. 196 (2004).
56. The stated purpose of the order is to establish "a uniform system for classifying, safeguarding and declassifying national security information, including information relating to defense against transnational terrorism".
57. Id. With limited exception, the ability to classify information originally may be exercised only by the "original classification authorities, " namely, the President, the Vice President (in the performance of executive duties) and agency heads and officials designated by the President in the Federal Register.
58. Id. at 197. These original classification authorities must receive training on Executive Order No. 13, 292 and its implementation directives (including possible criminal, civil and administrative sanctions in connection with unauthorized disclosures of the information) and may delegate their classification authority in writing to subordinate officials who have a "demonstrable and continuing" need to exercise it.
59. Id. at 197-98.
60. See id. at 215. Three classification sensitivity levels apply in the United States: (i) Top Secret, for information that, if publicly disclosed, reasonably could be expected to cause "exceptionally grave damage" to the national security; (ii) Secret, for information that, if publicly disclosed, reasonably could be expected to cause "serious damage" to the national security; and (iii) Confidential, for information that, if publicly disclosed, reasonably could be expected to cause "damage" to the national security if disclosed to the public. Note that it is impermissible to classify information in order to cover up illegal activities or merely because it would be embarrassing to state actors or others; information may only be classified to protect national security objectives.
61. See id. at 200 (setting forth restrictions on reasons for classification).
62. The availability of the federal courts and courts-martial as legal avenues that recognize and protect classified information has led some to assert that detainee prosecutions should take place in those systems. An examination of whether suspected terrorists should be tried either under these or other legal regimes instead of by military commissions is beyond the scope of this article. Nevertheless, with respect to the use of federal courts, the prosecution of Zacharias Moussaoui serves as a cautionary tale as far as disclosure of sensitive information is concerned. To the dismay of many, Moussaoui was prosecuted in federal court. See, e.g., Fox News Sunday (Fox television broadcast Dec. 16, 2001) (statement of Sen. Joseph Lieberman) ("If [Moussaoui] is not a candidate for a military tribunal, who is?");
63. Treatment and Trial of Certain Non-citizens in the War Against Terrorism, Hearing on Military Order on Detention Before the S. Armed Servs. Comm., 107th Cong. (2001) (statement of Sen. Carl Levin) ("The glove fits so perfectly here [for prosecution before a military commission].");
64. see also Editorial, The Moussaoui Experiment, WASH. POST, Jan. 27, 2003, at A18 (suggesting that Moussaoui's trial be moved to military court). Once Moussaoui was brought to the civilian courts, he benefited from the full range of rights afforded to criminal defendants who are American citizens, which he is not (he is a French citizen). For certain technical reasons, his case was not a CIPA case. Regardless, the prosecution had great difficulty restricting Moussaoui's access to sensitive information, and especially to sensitive sources.
65. See, e.g., United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004);
66. A. John Rasdan, The Moussaoui Case: The Mess from Minnesota, 31 WM. MITCHELL L. REV. 1417 (2005) (discussing the challenges in prosecuting Moussaoui in the civil criminal courts). Trying Guantánamo detainees and other suspected terrorists in the federal court system would involve similar complications.
67. See S. REP. No. 96-823, at 2 (1980)
68. reprinted in 1980 U. S. C. C. A. N. 4294, 4295. The impetus for CIPA's passage was primarily to facilitate the criminal prosecution of Cold War-era spies.
69. See generally Katherine L. Herbig & Martin F. Wiskoff, DEFENSE PERSONNEL SECURITY RESEARCH CENTER, ESPIONAGE AGAINST THE UNITED STATES BY AMERICAN CITIZENS 1947-2001 (2002), available at http://www.fas.org/sgp/library/ spies.pdf.
70. See 18 U. S. C. app. III, § 5.
71. See id. § 4 (allowing for the deletion, substitution or summarizing of classified information during discovery). "Congress intended section 4 to clarify the court's powers under Fed. R. Crim. P. 16 (d) (1) to deny or restrict discovery in order to protect national security".
72. United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988)
73. (citing S. REP. No. 823, at 6
74. reprinted in 1980 U. S. C. C. A. N. 4299-4300);
75. see also United States v. Yunis, 867 F.2d 617, 621 (D. C. Cir. 1989) (stating that § 4 of CIPA "contemplates an application of the general law of discovery in criminal cases to the classified information area with limitations imposed based on the sensitive nature of classified information").
76. 18 U. S. C. app. III § 4;
77. see also Brian Z. Tamanaha, A Critical Review of the Classified Information Procedures Act, 13 AM. J. CRIM. L. 277, 291 n. 73 (1986);
78. Note, Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962, 1962-63 (2005);
79. United States v. Libby, 429 F. Supp. 2d 46, 48 (D. D. C. 2006). An authorization by the court to so delete or substitute requires a "sufficient showing" by the Government. Although "sufficient showing" is not defined in CIPA, as discussed in greater detail below, courts have fashioned standards and tests to determine whether defendants should prevail on CIPA discovery requests for classified information. See infra notes 84-97 and accompanying text. Although beyond the scope of this article, note that CIPA also requires that a defendant file a notice describing the classified information he "reasonably expects to disclose or cause the disclosures of" at trial. 18 U. S. C. app. III, § 5 (a). Hence, if classified information is disclosed to (or otherwise possessed by) a defendant who intends to use it in the proceedings, the Government may request a hearing to determine the "use, relevance or admissibility" of the information.
80. Id. § 6 (a). If the court then rules that the classified information is admissible, the Government may move to substitute or summarize the information.
81. Id. § 6 (c) (1). In fact, the court is required to grant the Government's motion for an alternative to outright disclosure if that alternative will provide the defendant "with substantially the same ability to make his defense as would disclosure of the specified classified information. "
82. Id.
83. MCM, supra note 11, MIL. R. EVID. 505 (c).
84. See id. MIL. R. EVID. 505 (g) (2). This evidentiary rule provides: Limited disclosure. The military judge, upon motion of the Government, shall authorize (A) the deletion of specified items of classified information from documents to be made available to the defendant, (B) the substitution of a portion or summary of the information for such classified documents, or (C) the substitution of a statement admitting relevant facts that the classified information would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial. The Government's motion and any materials submitted in support thereof shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
85. Id.
86. Id. Similar to § 6 (a) of CIPA, MRE 505 allows the Government to make a motion for an in camera proceeding to determine whether, and in what form, classified information may be disclosed and used during the court-martial trial proceeding.
87. Id. MIL. R. EVID. 505 (i) (4). Classified information may only be disclosed if it is "relevant and necessary to an element of the offense or a legally cognizable defense".
88. Id. MIL. R. EVID. 505 (i) (4) (B);
89. see also United States v. Lonetree, 31 M. J. 849, 856 (N. M. C. M. R. 1990)
90. aff'd 35 M. J. 396 (C. M. A. 1992)
91. cert. denied, 507 U. S. 1017 (1993).
92. Specifically, § 949d (f) (1) of the MCA states: (f) Protection of Classified Information-(1) NATIONAL SECURITY PRIVILEGE-(A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter. (B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or Government agency concerned based on a finding by the head of that department or agency that-(i) the information is properly classified; and (ii) disclosure of the information would be detrimental to the national security. Note that the military judge may not assess the validity of the national security privilege. Rather, it appears that Congress intended to defer exclusively to the department or agency head on the substance of the privilege assertion, as determined in accordance with § 949d (f) (1) (B), and that the military judge's review consists merely of ensuring that the relevant department or agency head has made the required finding as to (i) the proper classification of the information at issue, and (ii) the potential impact of its disclosure.
93. 10 U. S. C. S. § 949d (f) (1) (LEXIS 2007).
94. In the words of Senator John McCain, "[W]hile ensuring a full and fair process, the legislation [that became the MCA] also recognizes the important role that classified information is likely to play in these trials. The legislation expressly provides the Government with a privilege to protect classified information. " 152 CONG. REC. at S10, 275 (daily ed. Sept. 7, 2006) (statement of Sen. McCain).
95. Note that even after discovery, during an examination of a witness, trial counsel may object to admission into evidence of any classified information and the military judge (who may choose to review trial counsel's claim of privilege in camera and on an ex parte basis) must thereafter safeguard the information. 10 U. S. C. S. § 949d (f) (2) (C) (stating, in relevant part: "During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. ").
96. A parallel to this is found in CIPA, which requires that the court take protective action when the defense's questioning of a witness may require the disclosure of classified information. 18 U. S. C. app. III § 8 (c) (2000).
97. Section 949d (f) (2) (A) of the MCA states as follows: (A) ALTERNATIVES TO DISCLOSURE.-To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable-(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission; (ii) the substitution of a portion or summary of the information for such classified documents; or (iii) the substitution of a statement of relevant facts that the classified information would tend to prove.
98. Id.
99. Id. § 949d (f) (2) (B).
100. This explicit protection of counterintelligence means was obviously intentional. In the words of Senator Lindsey Graham, We struck a great balance.... We need to be very clear that, in prosecuting the terrorists during a time of war, we do not have to reveal our sources and methods to protect us, our classified procedures.... But if the Government decides to provide information to the jury that would result in a conviction, sending someone to jail for a long period of time, or to the death chamber, an American trial must allow that person to know what the jury found them guilty of so they can confront the evidence.
101. Byron York, The Detainee Deal: The White House Won-and So Did McCain, NAT'L REV. ONLINE, Sept. 22, 2006, available at http://article.nationalreview. com/?q=YWYON TjhOGVjMGRkNTBkZGY1NTZkYTg4MGViY2I1ZTE=.
102. The Government's protectiveness over such information in legal proceedings is not limited to restricting disclosure in U. S. courts; rather, it also has gone to great pains to protect its classified sources and methods in the context of international criminal justice. See, e.g., Laura Moranchek, Protecting National Security Evidence While Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY, 31 YALE J. INT'L L. 477 (2006). For instance, the U. S. Government allowed its former officials to testify before the ICTY at Slobodan Milošević's trial only in a closed session with two Government officials present and with permission to delete any testimony from the record that it believed compromised U. S. national security.
103. Id. at 484. The reason given for these conditions to testimony was as follows: "It is a matter of intelligence collection and a fear that sources and methods of obtaining information could be jeopardized if [the former officials] have to testify in open court".
104. Id.
105. see also Ian Black, Wesley Clark Testifies in Secret at Milosevic Trial, GUARDIAN, Dec. 16, 2003, at 11;
106. Closed Session Ordered for Envoy's War Crimes Testimony, AUSTRALIAN, June 14, 2002, at 9;
107. Elaine Sciolino, Clark Testifies Against Milosevic at Hague Tribunal, N. Y. TIMES, Dec. 16, 2003, at A3.
108. An examination of the validity or morality of detainee interrogation techniques employed by any DOD or governmental agency program is beyond the scope of this article. Nevertheless, it cannot be disputed that interrogations of suspected high-ranking terrorists have, at times, proved modestly effective in yielding useful intelligence. The CIA's High Value Terrorist Detainee Program has been particularly effective in this regard, reporting success in using interrogation methods that have led to the capture of al Qaeda operations chief Khalid Shaykh Mohammad, better known as the mastermind of the September 11 attacks, and Ramzi bin al-Shibh, another September 11 plotter.
109. See OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, SUMMARY OF THE HIGH VALUE TERRORIST DETAINEE PROGRAM (2006), http://www.dni.gov/announcements/ content/TheHighValueDetaineeProgram.pdf. Once captured, Khalid Shaykh Mohammad himself appears to have provided a plethora of information about other terrorists and planned operations.
110. See id. Information from interrogations has also played an important part in averting additional terrorist plots, including one involving the destruction of commercial airliners from London in the summer of 2006.
111. See Mark Mazzetti, The Reach of War; New Generation of Qaeda Chiefs Is Seen on Rise, N. Y. TIMES, Apr. 2, 2007, at A-1.
112. As noted above, some critics have focused exclusively on potential invocation of privilege over counter intelligence sources, methods and activities to conceal in commission proceedings abusive and/or illegal interrogation techniques that may either embarrass the Government or permit coerced statements. See supra note 14. as one commentator states bluntly: The bill [that became the MCA] includes a number of provisions that protect classified "sources, methods, or activities" against being revealed. The likely impact of such provisions is to bar any inquiry into the CIA's abusive interrogation practices. (For sources, substitute " disappeared" detainees; for methods, substitute torture, and for activities, substitute water-boarding, stress positions, and days without sleep.)
113. Joanne Mariner, The Military Commissions Act of 2006: A Short Primer, Oct. 9, 2006, http://writ.news.findlaw.com/mariner/20061009.html;
114. see also HUMAN RIGHTS WATCH Q & A, supra note 14, at 4 ("Unless military commission judges are extremely vigilant [in the application of protection over classified sources, methods and activities], the prohibition on evidence obtained through torture could be become virtually meaningless."). While beyond the scope of this article, the admission of potentially "coerced" evidence is quite limited under the MCA. A statement obtained prior to the enactment of the Detainee Treatment Act of 2005 (42 U. S. C. S. § 2000dd (LEXIS 2007) [hereinafter DTA 2005]) where the degree of coercion is disputed, may be admitted only if the military judge concludes that (i) the statement is reliable and possesses sufficient probative value, and (ii) that the interests of justice would be best served by admitting the statement; for statement obtained after enactment of DTA 2005, the military judge also must conclude that the interrogation methods used were not cruel, inhuman, or degrading. 10 U. S. C. S. § 948r.
115. Improving human intelligence has been a common theme in administrative and congressional reviews since the September 11th attacks. See, e.g., H.
116. Joint Investigation into September 11th: Second Public Hearing Before the Joint H. & S. Intelligence Comms., 107th Cong. (2002), available at http://www.fas.org/irp/congress/2002-hr/091902berger.pdf (statement by Samuel Berger);
117. see also COUNTERTERRORISM CAPABILITIES REPORT, supra, at 2 ("CIA did not sufficiently penetrate the al-Qa'ida organization before September 11th. Because of the perceived reduction in the threat environment... and the concomitant reduction in resources for basic human intelligence collection, there were fewer operations, officers, fewer stations, fewer agents, and fewer intelligence reports produced.").
118. According to a Department of Justice publication, this program is narrowly focused on international calls for which there is a reasonable basis to believe that one party to the communication is affiliated with al Qaeda. U. S. DEP'T OF JUSTICE, THE NSA PROGRAM TO DETECT AND PREVENT TERRORIST ATTACKS: MYTH V. REALITY 2 (2006), http://www.usdoj.gov/opa/documents/nsa-myth-v-reality.pdf.
119. Although not aimed at intercepting an enemy nation's signals, the TSP nevertheless falls within classic signals intelligence. According to the DOD Definitions, signals intelligence is defined as "communications intelligence, electronic intelligence, and foreign instrumentation signals intelligence, however transmitted". DOD Dictionary, supra note 6, at 492. The use of signals intelligence to track and capture non-state figures through their communications is not new. One noted case where it has been used is that of Kurdistan Workers' Party leader Abdullah Oçalan, who led a bloody war in the 1990s against Turkish forces for an independent Kurdish state. (There are approximately twenty-five million Kurds, primarily in Iraq, Iran, Syria and southeast Turkey, making them the largest ethnic population without a state in the world.) Oçalan was captured in 1999 in Kenya after being expelled some years earlier from Syria and subsequently being freed from house arrest in Italy. The exact circumstances of how he was located and apprehended are not clear, although The New York Times published a report citing unnamed U. S. sources claiming that U. S., British and Israeli intelligence agents tracked his mobile phone activity and passed on information about his whereabouts to Turkey.
120. Tim Weiner, U. S. Helped Turkey Find and Capture Kurd Rebel, N. Y. TIMES, Feb. 20, 1999, at 1. The United States officially maintains it did not participate in the capture of Oçalan.
121. The TSP was disclosed to the public in December 2005. See, e.g., James Risen & Eric Lichtabu, Bush Lets U. S. Spy on Callers Without Courts, N. Y. TIMES, Dec. 16, 2005, at A-1. In a recent suit brought by the American Civil Liberties Union (ACLU) and certain journalists, academics and lawyers, a U. S. district court judge in Michigan held that the program's warrantless monitoring violated the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, and statutory law.
122. See ACLU vs. NSA, 438 F. Supp. 2d 754, 782 (E. D. Mich. 2006). The Sixth Circuit, however, vacated the district court's order and remanded the case with instructions that it be dismissed for lack of jurisdiction based on the plaintiffs' inability to establish standing for any of their asserted claims.
123. See ACLU v. NSA, Nos. 06-2095/2140, at 35 (6th Cir. July 6, 2007). The Government had argued that the President had the "inherent" authority under the Constitution to engage in signals intelligence as Commander-in-Chief, that the AUMF implicitly authorized the activity and that the telephone conversations were intercepted only where the Government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda". Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, White House Press Briefing, Dec. 19, 2005, available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
124. 9/11 COMMISSION REPORT, supra note 4, at 169. The operatives spent more than $270, 000 in the United States and incurred "additional expenses includ[ing] travel to obtain passports and visas, travel to the United States, expenses incurred by the plot leader and facilitators outside the United States, and expenses incurred by the people selected to be hijackers who ultimately did not participate".
125. Id. at 499 n. 131.
126. As the future co-Chairman of the 9/11 Commission, Lee H. Hamilton, noted: [T]racking al Qaeda financing is an effective way to locate terrorist operatives and supporters and to disrupt terrorist plots.... Following the money to identify terrorist operatives and sympathizers provides a particularly powerful tool in the fight against terrorist groups. use of this tool almost always remains invisible to the general public, but it is a critical part of the overall campaign against al Qaeda. National Commission on Terrorist Attacks Upon the United States, Statement Before the S. Comm. on Banking, Housing & Urban Affairs, 108th Cong. (2004) (statement of former Vice Chair Lee H. Hamilton and Commissioner Slade Gorton), available at http://banking.senate.gov/ -files/joint-st.pdf.
127. This executive order states, in relevant part: [B]ecause of the pervasiveness and expansiveness of the financial foundations of foreign terrorists, [this] Order authorizes the U. S. Government to block the assets of individuals and entities that provide support, services, or assistance to, or otherwise associate with, terrorists and terrorist organizations designated under [this] Order, as well as their subsidiaries, front organizations, agents, and associates.... I also find that because of the pervasiveness and expansiveness of the financial foundation of foreign terrorists, financial sanctions may be appropriate for those foreign persons that support or otherwise associate with these foreign terrorists. I also find that a need exists for further consultation and cooperation with, and sharing of information by, United States and foreign financial Exec. Order No. 13, 224, 3 C. F. R. 786 (2002). Through this executive order, President Bush froze the assets of twenty-seven organizations and individuals having suspected links to terrorists. Thirty-nine names were added within the next month.
128. As the 9/11 Commission noted, "al Qaeda had many sources of funding and a pre-September 11th annual budget estimated at $30 million. " 9/11 COMMISSION REPORT, supra note 4, at 170.
129. ROHAN GUNARATNA, INSIDE AL QAEDA: GLOBAL NETWORK OF TERROR 81 (2003). It also uses regional financial officers to further manage its funds.
130. Id.
131. Id. at 83-84. Among other things, this document instructs the reader how to counterfeit currency and credit cards and forge official documents.
132. Id. Interestingly, it articulates several financial security principles, including the following: (i) funds should be either invested for financial return or set aside (and scattered) for use in operations; (ii) very few members should know the location of funds at any one time; and (iii) monies should be left with non-members of the organization.
133. Id. at 84.
134. As the 9/11 Commission pointed out, "Al Qaeda and its friends took advantage of Islam's strong calls for charitable giving, zakat. These financial facilitators also appeared to rely heavily on certain imams at mosques who were willing to divert zakat donations to al Qaeda's cause". 9/11 COMMISSION REPORT, supra note 4, at 170. Some of these donations have been generated from unwitting philanthropic organizations.
135. See, e.g., William E. Wechsler, Strangling the Hydra: Targeting al Qaeda's Finances, in HOW DID THIS HAPPEN? TERRORISM AND THE NEW WAR 137 (James F. Hodge, Jr. & Gideon Rose eds., 2001).
136. Indeed, it appears "al Qaeda found fertile fund-raising ground in Saudi Arabia, where extreme religious views are common and charitable giving was both essential to the culture and subject to very limited oversight". 9/11 COMMISSION REPORT, supra note 4, at 171.
137. GUNARATNA, supra note 57, at 87.
138. ® truck by convicted terrorist Muhammad Salameh and his co-bombers in connection with the 1993 World Trade Center bombing. However, it may also mean day-to-day expenditures, such as rent payments for sleeper cells and training facility necessities.
139. GUNARATNA, supra note 57, at 90.
140. See generally DOUGLAS FARAH, BLOOD FROM STONES (2004).
141. See also Douglas Farah, Al Qaeda Cash Tied to Diamond Trade: Sale of Gems From Sierra Leone Rebels Raised Millions, Sources Say, WASH. POST, Nov. 2, 2001, at A01 (reporting that one European investigator opined: "I now believe that to cut off al Qaeda funds and laundering activities you have to cut off the diamond pipeline.... We are talking about millions and maybe tens of millions of dollars in profits and laundering.");
142. Al Qaeda Bought Diamonds Before 9/11, USA Today, Aug. 7, 2004 (reporting witness accounts that six senior al Qaeda associates dealt directly with then-Liberian President Charles Taylor and other warlords beginning in 1999).
143. Nevertheless, the 9/11 Commission concluded: "we have seen no persuasive evidence that al-Qaeda funded itself by trading in African conflict diamonds". 9/11 COMMISSION REPORT, supra note 4, at 171.
144. Several forms of hawala exist, mostly in South Asia and in the Middle East. In its simplest form, it consists of a broker located in one location taking a fee to transfer money to a recipient in a different location through a trusted contact of the broker. The steps of a typical hawala transaction are as follows: (i) the sender gives the broker the amount to be transferred, plus his fee (typically about one percent of the transaction), (ii) the broker notifies a personal contact in proximity of the recipient of the intended transfer through e-mail, instant message, phone, or fax, (ii) the contact approaches the recipient, who often must provide a pre-designated password or detail to complete the transaction, (iii) the contact extends the money to the recipient, and (iv) the broker and his contact keep detailed ledgers and either cancel existing debt or physically settle the transaction by falsifying invoices for phantom goods and services or by providing goods (including commodities such as gold and diamonds) or services of equivalent value as an alternative to cash. The system relies on a high level of trust between the broker and his contact, as their bilateral settlement is not secured. Large-scale use of hawala appears to have begun in the 1940s when, for a variety of reasons, an enormous number of people migrated from South Asian rural areas to cities throughout the world, transferring what wealth they could through trusted friends and extended family.
145. Michelle Cottle, Hawalah v. The War on Terrorism, NEW REPUBLIC, Oct. 15, 2001, at 1-2. Hawala exploded in the 1960s and 1970s, as migrants of Asian and Middle Eastern expatriates arranged to send earnings to family members in their country of origin without paying the high banking and exchange rates required of such transfers in the official banking system.
146. Id. Hawala remains a significant method for large numbers of businesses of all sizes and individuals to repatriate funds and purchase gold.... It is favoured because it usually costs less than moving funds through the banking system, it operates 24 hours per day and every day of the year, it is virtually completely reliable, and there is minimal paperwork required". ORG. FOR ECON. CO-OPERATION AND DEV. (OECD) FIN. ACTION TASK FORCE ON MONEY LAUNDERING, REPORT ON MONEY LAUNDERING TYPOLOGIES 1999-2000 (2000), http://www.fatf-gafi. org/dataoecd/29/37/34038120.pdf.
147. In fact, the Department of the Treasury Under Secretary for Terrorism and Financial Intelligence noted in 2004: as the formal and informal financial sectors become increasingly inhospitable to financiers of terrorism, we have witnessed an increasing reliance by al-Qaida and terrorist groups on cash couriers. The movement of money via cash couriers is now one of the principle methods that terrorists use to move funds.
148. Legislative Proposals to Implement the Recommendations of the 9/11 Commission: Hearing Before the H. Comm. on Fin. Servs., 108th Cong. 35 (2004) (Prepared testimony of Stuart A. Levey, Undersecretary for Terrorism and Financial Intelligence, U. S. Department of the Treasury) [hereinafter Levey FSC Testimony]). Charitable organizations also may be used by terrorist organizations to move funds.
149. 9/11 COMMISSION REPORT, supra note 4, at 171. One notable such case is that of Dihab Shill, a Somali-based hawaladar (broker) that was identified as the financier of the 1998 attacks on the American embassies in Kenya and Tanzania. One terrorist involved in the attack, Mohamed Al-Owhali, apparently had no money or identity papers, but was nevertheless able to receive funds from Dihab Shill because the al Qaeda contact who sent him cash from Yemen had written a note on the transfer which, according to the Dihab Shill owner in Nairobi, Kenya, said: "This person doesn't have any proper documents... please give him without documents".
150. John Willman, Trail of Terrorist Dollars That Spans the World, FIN. TIMES, Nov. 29, 2001, at https://specials.ft.com/attack onterrorism/FT3RNR3XMUC. html.
151. Note, however, that the 9/11 Commission found no evidence of hawala being used in connection with the September 11 attacks. 9/11 COMMISSION REPORT, supra note 4, at 499 n. 131.
152. For instance, according to the estimates of Shaukut Aziz, Pakistan's Minister of Finance and a former executive vice president of Citibank in New York, as of 2001, Pakistani hawala networks accounted for transfers of between two and five billion U. S. dollars per year; on the higher end, this is many multiples greater than the amount of foreign transfers made annually through the official Pakistani banking system.
153. See Douglas Frantz, A Nation Challenged: Ancient Secret System Moves Money Globally, N. Y. TIMES, Oct. 3, 2001, at 2.
154. See U. S. Dep't of Treasury Secretary John W. Snow, Letter to the Editor, N. Y. TIMES, June 29, 2006 [hereinafter Secretary Snow Letter] (stating "[w]hile terrorists are relying more heavily than before on cumbersome methods to move money, such as cash couriers, we have continued to see them using the formal financial system..."). It stands to reason that the lower the amount involved, the less the ability of the bank to flag and scrutinize a cash transaction due to the sheer volume of daily transactions. The Bank Secrecy Act of 1970, which was amended by the USA PATRIOT Act of 2001, established an arbitrary threshold of $10, 000 for daily cash transactions, above which U. S. banks must file a report known as a "Currency Transaction Report".
155. U. S. C. §§ 5313, 5316 (a) (2000). Note, however, that U. S. banks must also file a "Suspicious Activity Report" where the bank "knows, suspects or has reason to suspect" that questionable cash transactions are being effected.
156. Id. § 5318 (g).
157. 9/11 COMMISSION REPORT, supra note 4, at 14 (Executive Summary).
158. See id. at 382 (noting that the world financial community has provided strong cooperation in supplying relevant information for investigations).
159. According to Treasury Department Undersecretary Levey: [W]hile terrorist supporters may use code names on the phone, when they send or receive money through the banking system, they often provide information that yields the kind of concrete leads that can advance an investigation. For these reasons, counter-terrorism officials place a heavy premium on financial intelligence.... Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th.
160. The Terror Finance Tracking Program: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Fin. Servs., 108th Cong. 44 (2006) (Prepared testimony of Stuart A. Levey) [hereinafter Levey HFSSOI Testimony].
161. First Data, which operates globally, processes massive volumes of credit charge charges and, as such, has access to who purchases what and where they live. See Ron Suskind, THE ONE PERCENT DOCTRINE 38 (2006). According to its web site, a sender may send money through Western Union to 245, 000 agent locations in over 200 countries. WesternUnion, http://www.westernunion. com/info/selectCountry.asp?origina tion=global (last visited Oct. 4, 2007).
162. The first public admission of the existence of the program was made on 22 June 2006.
163. See Glen R. Simpson, U. S. Is Moving on Several Fronts to Police Financial Transactions, WALL ST. J., June 24, 2006, at A4;
164. see also Eric Lichtblau & James Risen, Bank Data Sifted in Secret by U. S. to Block Terror, N. Y. TIMES, June 23, 2006, at A-1;
165. Barton Gellman, et al., Bank Records Secretly Tapped, WASH. POST, June 23, 2006, at A-1;
166. Josh Meyer & Greg Miller, U. S. Secretly Tracks Global Bank Data, L. A. TIMES, June 23, 2006, at A-1.
167. According to its web site, SWIFT was founded in 1973 with the mission of "creating a shared worldwide data processing and communications link and a common language for international financial transactions". SWIFT, About SWIFT, http://www.swift.com/index.cfm?item-id=1243 (last visited Oct. 4, 2007).
168. SWIFT's web site indicates exactly how expansive its reach is, reporting that it currently provides messaging services and interface software to nearly 8, 100 financial institutions in 206 countries. SWIFT, About SWIFT, http://www.swift.com/index.cfm?item-id=62272 (last visited Oct. 4, 2007). Once the TFTP was publicly acknowledged by a U. S. Government official, SWIFT issued the following statement to help allay fear in the financial markets of abuse: In the aftermath of the September 11th attacks, SWIFT responded to compulsory subpoenas for limited sets of data from the Office of Foreign Assets Control of the United States Department of the Treasury. Our fundamental principle has been to preserve the confidentiality of our users' data while complying with the lawful obligations in countries where we operate.
169. Press Release, Statement on Compliance by SWIFT, June 23, 2006, available at http://www.swift.com/index.cfm?item-id=59904.
170. Glen R. Simpson, Treasury Tracks Financial Data in Secret Program, WALL ST. J., June 23, 2006, at A1.
171. In the words of then-Treasury Secretary John W. Snow: "I am particularly proud of our Terrorist Finance Tracking Program which, based on intelligence leads, carefully targets financial transactions of suspected foreign terrorists". U. S. Department of the Treasury Press Release, John W. Snow, Secretary of the Treasury (June 22, 2006), available at http://www.treas.gov/press/releases/js4332.htm.
172. See Levey HFSSOI Testimony, supra note 72 (noting that the program "played an important role in the investigation that eventually culminated in the capture of Hambali, Jemaah Islamiyya's Operations Chief, who masterminded the 2002 Bali bombings" and uncovered "a key piece of evidence that confirmed the identity of a major Iraqi terrorist facilitator and financier").
173. In relevant part, Secretary Snow's letter stated: The decision by The New York Times to disclose the Terrorist Finance Tracking Program, a robust and classified effort to map terrorist networks through the use of financial data, was irresponsible and harmful to the security of Americans and freedom-loving people worldwide. In choosing to [expose this program], The Times undermined a highly successful counter-terrorism program and alerted terrorists to the methods and sources used to track their money trails. Secretary Snow Letter, supra note 69. Following the disclosure of the program, Treasury Undersecretary Levey testified: "The Terrorist Finance Tracking Program was... an invisible tool. Its exposure represents a grave loss to our overall efforts to combat al Qaida and other terrorist groups".
174. Levey HFSSOI Testimony, supra note 72.
175. See 10 U. S. C. S. § 949d (f) (2) (B) (LEXIS 2007).
176. See, e.g., United States v. Walker-Lindh, 198 F. Supp. 2d 739, 742 (E. D. Va. 2002);
177. United States v. Bin Laden, 58 F. Supp. 2d 113, 121 (S. D. N. Y. 1999). As one court stated in an attempt to disclose surveillance information under the Foreign Intelligence Surveillance Act, "[i]n the area of foreign intelligence gathering, the need for extreme caution and sometimes even secrecy may not be overemphasized".
178. United States v. Ott, 637 F. Supp. 62, 65 (E. D. Ca. 1986)
179. aff'd, 827 F.2d 473, 475 (9th Cir. 1987).
180. See Bin Laden, 58 F. Supp. 2d at 121 (In considering whether to require security clearances for defense counsel, the court stated that concern over the disclosure of classified information is "heightened in this case because the Government's investigation is ongoing, which increases the possibility that unauthorized disclosures might place additional lives in danger.").
181. For instance, in the prosecution of John Walker-Lindh in 2002, a federal district court acknowledged that "given the nature of al Qaeda and its activities, and the ongoing federal law enforcement investigation into al Qaeda, the identities of the [interviewed] detainees, as well as the questions asked and the techniques employed by law enforcement agents in the interviews are highly sensitive and confidential".
182. Walker-Lindh, 198 F. Supp. 2d at 742.
183. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2798 (2006). Sources of intelligence information have been protected across the federal legal landscape, and not just in connection with terrorism trials. For example, in
184. CIA v. Sims, 471 U. S. 159, 175 (1985), the Supreme Court recognized the broad authority of the director of Central Intelligence to withhold intelligence sources from Freedom of Information Act disclosure requests
185. reiterating its position in Snepp v. United States, 444 U. S. 507, 509 n. 3 (1980) (per curiam), that "the [g]overnment has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service".
186. Haig v. Agee, 453 U. S. 280, 307 (1981)
187. (quoting Aptheker v. Sec'y of State, 378 U. S. 500, 509 (1964), a case where the public disclosure of the CIA station chief in Athens, Greece, was quickly followed by his assassination).
188. As the original statute addressing the procedures for disclosure of classified information in legal proceedings, CIPA has more developed case law than MRE 505. Hence, this analysis focuses solely on CIPA. CIPA itself has withstood the test of time and its provisions have repeatedly been found constitutional. See, e.g., United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir. 1984);
189. United States v. Wilson, 750 F.2d 7 (2d Cir. 1984);
190. see also Timothy J. Shea, Note, CIPA Under Siege: The use and Abuse of Classified Information in Criminal Trials, 27 Am. Crim. L. Rev. 657 (1990).
191. Note further that § 5 of CIPA and § 949d (f) (1) of the MCA would prevent the accused from disclosing such information unless and until vetted by the court.
192. See S. Rep. No. 96-823, at 8 (1980);
193. H. R. No. 96-1436, at 12 (1980) (Conf. Rep.);
194. United States v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998) ("CIPA has no substantive impact on the admissibility or relevance of probative evidence.") (citations omitted).
195. United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (citations and quotations omitted);
196. see also United States v. Smith, 780 F.2d 1102, 1106 (4th Cir. 1985) (en banc) (stating that "[t]he circuits that have considered the matter agree with the legislative history... that ordinary rules of evidence determine admissibility under CIPA") (citations omitted).
197. 18 U. S. C. app. III, § 4;
198. see also Pringle, 751 F.2d at 427;
199. United States v. Libby, 429 F. Supp. 2d 46, 47 (D. D. C. 2006).
200. Irrespective of the CIPA discovery procedures, the Government's obligation to disclose any evidence in its possession that is exculpatory to a defendant in accordance with Brady v. Maryland, 373 U. S. 83, 87 (1963), remains. Although the Supreme Court has stated that "[t]here is no general constitutional right to discovery in a criminal case and Brady did not create one, "
201. Weatherford v. Bursey, 429 U. S. 545, 559 (1977), the Government would withhold such evidence at its own risk.
202. See United States v. Ramirez, 54 F. Supp. 2d 25, 33 (D. D. C. 1999). To properly comply with its Brady obligations, the Government would need to assess whether the evidence in its possession was arguably exculpatory and, if so, should submit the evidence to the court for an in camera and ex parte review to secure judicial approval for withholding it from the defense.
203. See United States v. Felt, 491 F. Supp. 179, 184 (D. D. C. 1979).
204. See 18 U. S. C. app. III, § 4;
205. see also H. R. Rep. No. 96-831, at 27 n. 22 (1980)
206. reprinted in 1980 U. S. C. C. A. N. 4307 (stating that an adversarial proceeding at this stage "would defeat the very purpose" of the Government's request to withhold discovery of the classified materials at issue);
207. United States v. Clegg, 740 F.2d 16, 17 (6th Cir. 1984) (noting that the district court allowed the Government to submit classified and unclassified documents for in camera ex parte review to establish their materiality to the defense);
208. Libby, 429 F. Supp. 2d at 48 (stating that the court can envision making determinations regarding the materiality of classified information in the preparation of the defense ex parte "if the Government is of the view that simply disclosing the nature or mere existence of certain classified information would alone pose significant harm to national security").
209. Note that this standard is explicitly set forth for determinations regarding substitutions for classified information at trial, and not for responses to discovery requests. 18 U. S. C. app. III, § 6 (c). Nevertheless, courts have applied this same standard for substitution determinations at the discovery stage, as doing so is in line with the underlying purpose of the Act.
210. See United States v. Yunis, 867 F.2d 617, 623 (D. C. Cir. 1989) (stating that classified information must be at least helpful to the defense, and not just theoretically relevant);
211. Smith, 780 F.2d at 1110 (stating that courts should order the disclosure of classified information only if it is "at least essential to [the] defense, necessary to the defense, and neither merely cumulative nor corroborative") (internal citation and quotation marks omitted);
212. see also United States v. Rezaq, 134 F.3d 1121, 1142 (D. C. Cir. 1998);
213. Libby, 429 F. Supp. 2d at 48.
214. See Yunis, 867 F.2d at 623.
215. Id.
216. Id. In connection with its determinations, some circuit courts have adopted balancing tests to weigh the defendant's right to prepare his defense against the public's interest in preventing disclosure of classified information.
217. See, e.g., United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988);
218. Smith, 780 F.2d at 1110.
219. United States v. Pringle, 751 F.2d 419, 425 (1st Cir. 1984). In relevant part, Rule 16 (d) (1) provides as follows: (1) Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone.
220. FED. R. CRIM. P. 16.
221. Pringle, 751 F.2d at 425.
222. Id. as the court pointed out, the legislative history makes clear that §§ 3 and 4 of CIPA "were intended to make explicitly the... limitation of discovery of classified information pursuant to [Rule 16]".
223. Id. at 427.
224. Id. at 427-28 (stating "[w]e have reviewed the classified information and agree with the district court that 'it was not relevant to the determination of the guilt or innocence of the defendants, was not helpful to the defense and was not essential to a fair determination of the cause.'")
225. (quoting Brady v. Maryland, 373 U. S. 83 (1963)).
226. For instance, in the course of examining the evidence identifying the financial monitoring program under CIPA's procedures, the court itself could determine that the reliability and/or accuracy of the program warrants adversarial probing. And yet, a court likely would proceed down this road with great caution. In short, where "the Government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules".
227. Sarkissian, 841 F.2d at 965 (quotation and citation omitted).
228. The same cannot be said for human sources of intelligence, whether Government agents, informants or interrogated persons. This is especially true where information is obtained through the interrogation of either the defendant himself or another detainee and the military judge must determine whether the resulting evidence is reliable. For example, evidence may be obtained through an informant with malicious motives or through the testimony of another detainee during an interrogation involving questionable tactics.
229. See supra note 48. The MCA specifically deals with coerced testimony.
230. See 10 U. S. C. S. § 948r (2007).
231. See supra note 44 and accompanying text.
232. See supra note 40. 105 10 U. S. C. S. § 949d (f) (1).
233. Exec. Order No. 13, 292, 3 C. F. R. 196, 198 (2004) (emphasis added).
234. See supra note 27 and accompanying text.
235. See 10 U. S. C. S. § 949d (f) (2) (B).
236. See id.
237. See supra notes 44-45 and accompanying text.