Abstract

http://ssrn.com/abstract=1580239
 


 



Remodeling the Classified Information Procedures Act (CIPA)


Afsheen John Radsan


William Mitchell College of Law

March 29, 2010

William Mitchell Legal Studies Research Paper No. 2010-09
Cardozo Law Review, Forthcoming

Abstract:     
The intelligence community and the law enforcement sector are supposed to be working closely to keep us all safe from terrorists and other dangers. The benefits of this cooperation should not be frittered away by unnecessary burdens in trying suspected terrorists in civilian courts. If the executive branch is to be kept away from the dark side of counterterrorism, the courts, Congress, or a combination of the two should modernize their approach to alignment, to Section 6 of Classified Information Procedures Act, and to closed portions of trials.

First, a prosecutor’s discovery obligations should apply to the intelligence community only when spymasters have most actively participated in the investigation. When defining “most actively” and in determining who falls within the prosecution unit, all three branches of government should err toward non-alignment. The recent creep toward conceding alignment on all cases since 9/11 should stop.

Second, courts should be less inclined to admit top-secret information into trial than information at a lower level of classification. The more sensitive the information, the more leeway courts should give prosecutors in proposing substitutions and summaries. The common sense that probably fills the gaps of CIPA practice, squeezing around cases and the statute, should be formalized by an update of CIPA.

Third, it should be possible to close portions of trials to all but the judge, jury, and the parties to the case when especially sensitive information is being presented. These limited closures will allow courts, as a compensating benefit, to lean toward defendants on Section 6 decisions as to the use of classified information at trial. By this compensation, the either/or of full disclosure versus complete suppression is traded for a range of options.

CIPA is showing its age. Even so, because its foundation is solid, it does not require a tear down as much as a remodeling. In at least three areas – alignment, Section 6, and closed portions of trials – our nation deserves a better resolution between the conflicting interests of prosecutors and spymasters.

Number of Pages in PDF File: 41

Keywords: CIPA, civilian trials, military commissions, Classified Information Procedures Act, intelligence community, CIA, FBI, law enforcement, discovery, Brady, terrorism, counterterrorism

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Date posted: March 31, 2010 ; Last revised: April 30, 2010

Suggested Citation

Radsan, Afsheen John, Remodeling the Classified Information Procedures Act (CIPA) (March 29, 2010). William Mitchell Legal Studies Research Paper No. 2010-09; Cardozo Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1580239 or http://dx.doi.org/10.2139/ssrn.1580239

Contact Information

Afsheen John Radsan (Contact Author)
William Mitchell College of Law ( email )
875 Summit Ave
St. Paul, MN 55105-3076
United States
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