The Case Against Secret Evidence

Abstract

The article considers the lessons that may be learned from the military and civilian court experiences with protected information under the provisions of Military Rule of Evidence 505 and the Classified Information Procedures Act. The paper then focuses on the potential consequences for endorsing the use of secret evidence, and we propose an amendment to Article 36(b) of the UCMJ that will more effectively allow Congress to provide a constitutional check on executive power in this area.

Keywords: secret evidence, CIPA, military commissions

JEL Classification: K40, K14, K42