Secret Evidence and the Due Process of Terrorist Detentions
Tel Aviv University - Buchmann Faculty of Law
Matthew C. Waxman
Columbia Law School
November 19, 2009
Columbia Journal of Transnational Law, Vol. 48, No. 003, 2009
Columbia Public Law Research Paper No. 09-218
Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush.
Number of Pages in PDF File: 63Accepted Paper Series
Date posted: November 24, 2009 ; Last revised: May 6, 2010
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