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The Classified Information Procedures Act:(CIPA) and Suspected Terrorists in Federal Civilian Courts: Subject to the Most Exacting Demands of Justice?

Martignetti, Anna Maria LU (2010) JAMM04 20101
Department of Law
Abstract
The condemnation of the specialized procedures of the faulty military commission system, particularly ex parte and in camera hearings to determine the closure of confidential information, has resulted in the contention that terror cases may be properly adjudicated in regularly constituted Article III courts. Proponents of prosecution of terror suspects in federal civilian courts assert that the conflict between adversarial trial and protecting classified information has been adequately resolved through the Classified Information Procedures Act (CIPA). However, CIPA, a procedural discovery statute enacted by Congress in 1980 to counter graymail attempts in espionage cases, authorizes ex-parte and in camera proceedings and the use of... (More)
The condemnation of the specialized procedures of the faulty military commission system, particularly ex parte and in camera hearings to determine the closure of confidential information, has resulted in the contention that terror cases may be properly adjudicated in regularly constituted Article III courts. Proponents of prosecution of terror suspects in federal civilian courts assert that the conflict between adversarial trial and protecting classified information has been adequately resolved through the Classified Information Procedures Act (CIPA). However, CIPA, a procedural discovery statute enacted by Congress in 1980 to counter graymail attempts in espionage cases, authorizes ex-parte and in camera proceedings and the use of secret classified information similar to the procedures condemned by the Supreme Court in Hamdan. Notably, while CIPA has passed constitutional muster in lower federal courts, the Supreme Court has not yet rendered an opinion on the constitutionality of CIPA. The Obama administration, in an attempt to shed its image as a pariah of human rights protection among the international community, has pledged to prosecute suspected terrorists in federal civilian courts. Can CIPA and Article III courts provide terror suspects with a fair trial as mandated by the Constitution and defined by the binding provision of the International Covenant of Civil and Political Rights (ICCPR)? The answer is a confounding maybe.

The Obama administration has reinstated the ill-defined and unremitting national emergency in regards to the threat of terrorism, a declaration contentiously alluding to the ability to derogate from fair trial principles embodied in Article 14 of the ICCPR. However, despite its conspicuous absence from the enumerated list of non-derogable rights, the right to a fair trial contains certain non-derogable components, even during times of public emergency. Similarly, the transference of terror cases from the military commissions to the federal civilian courts implied the abandonment of illegitimate and summary justice in favor of the adoption of the full spectrum of fundamental rights available in adversarial proceedings. However, the application of CIPA in terror cases has resulted in the dilution of non-negotiable Constitutional rights and fails to meet the de minimus protections required under international law. Alarmingly, the watered down constitutional doctrines seep into precedent, undermining the adversarial system and narrowing the protection of fundamental rights applicable in ‘ordinary’ criminal proceedings.

The imposed application of CIPA in the terror context without aforethought amounts to a superficial and disingenuous approach to the reinstatement of the rule of law. Indeed, the military commissions system remains a viable option for terror suspects, to the detriment of the United States. Virtually untouched since its enactment, CIPA may address the discovery and use of classified information during criminal proceedings in federal court, however, it fails to protect constitutional rights in situations where the defendant lacks security clearance. CIPA allows the prosecutor and the judge to operate under a veil of secrecy with minimal safeguards. CIPA from the judicial perspective seemingly places substantial burdens on judges to accommodate the rights of a defendant against the ill-fitting statute in the context of terrorism. Yet the controversial nature of CIPA in terror cases and its effects on constitutional rights engenders fear of public discussion and threats of recusal, preventing authentic discourse on the statute. Out of fifty federal judges solicited to participate in an anonymous interview on CIPA in the terror context for this study, only three agreed. The disconnect between human rights policy and fair trial practice must be addressed. However, the skeletal framework of CIPA and its objectives should not be wholly discarded. Rather, CIPA should be revised and refined to address the novel and complex issues arising in terror prosecutions while protecting the right to a fair trial. (Less)
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author
Martignetti, Anna Maria LU
supervisor
organization
course
JAMM04 20101
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1670606
date added to LUP
2010-09-15 10:46:37
date last changed
2010-09-15 10:46:37
@misc{1670606,
  abstract     = {The condemnation of the specialized procedures of the faulty military commission system, particularly ex parte and in camera hearings to determine the closure of confidential information, has resulted in the contention that terror cases may be properly adjudicated in regularly constituted Article III courts.  Proponents of prosecution of terror suspects in federal civilian courts assert that the conflict between adversarial trial and protecting classified information has been adequately resolved through the Classified Information Procedures Act (CIPA).  However, CIPA, a procedural discovery statute enacted by Congress in 1980 to counter graymail attempts in espionage cases, authorizes ex-parte and in camera proceedings and the use of secret classified information similar to the procedures condemned by the Supreme Court in Hamdan.  Notably, while CIPA has passed constitutional muster in lower federal courts, the Supreme Court has not yet rendered an opinion on the constitutionality of CIPA.  The Obama administration, in an attempt to shed its image as a pariah of human rights protection among the international community, has pledged to prosecute suspected terrorists in federal civilian courts.  Can CIPA and Article III courts provide terror suspects with a fair trial as mandated by the Constitution and defined by the binding provision of the International Covenant of Civil and Political Rights (ICCPR)? The answer is a confounding maybe.  

The Obama administration has reinstated the ill-defined and unremitting national emergency in regards to the threat of terrorism, a declaration contentiously alluding to the ability to derogate from fair trial principles embodied in Article 14 of the ICCPR.  However, despite its conspicuous absence from the enumerated list of non-derogable rights, the right to a fair trial contains certain non-derogable components, even during times of public emergency.  Similarly, the transference of terror cases from the military commissions to the federal civilian courts implied the abandonment of illegitimate and summary justice in favor of the adoption of the full spectrum of fundamental rights available in adversarial proceedings.  However, the application of CIPA in terror cases has resulted in the dilution of non-negotiable Constitutional rights and fails to meet the de minimus protections required under international law.   Alarmingly, the watered down constitutional doctrines seep into precedent, undermining the adversarial system and narrowing the protection of fundamental rights applicable in ‘ordinary’ criminal proceedings.

The imposed application of CIPA in the terror context without aforethought amounts to a superficial and disingenuous approach to the reinstatement of the rule of law.  Indeed, the military commissions system remains a viable option for terror suspects, to the detriment of the United States.   Virtually untouched since its enactment, CIPA may address the discovery and use of classified information during criminal proceedings in federal court, however, it fails to protect constitutional rights in situations where the defendant lacks security clearance.  CIPA allows the prosecutor and the judge to operate under a veil of secrecy with minimal safeguards.  CIPA from the judicial perspective seemingly places substantial burdens on judges to accommodate the rights of a defendant against the ill-fitting statute in the context of terrorism.  Yet the controversial nature of CIPA in terror cases and its effects on constitutional rights engenders fear of public discussion and threats of recusal, preventing authentic discourse on the statute.  Out of fifty federal judges solicited to participate in an anonymous interview on CIPA in the terror context for this study, only three agreed. The disconnect between human rights policy and fair trial practice must be addressed.  However, the skeletal framework of CIPA and its objectives should not be wholly discarded.  Rather, CIPA should be revised and refined to address the novel and complex issues arising in terror prosecutions while protecting the right to a fair trial.},
  author       = {Martignetti, Anna Maria},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Classified Information Procedures Act:(CIPA) and Suspected Terrorists in Federal Civilian Courts: Subject to the Most Exacting Demands of Justice?},
  year         = {2010},
}