Secret Evidence and the Due Process of Terrorist Detentions

63 Pages Posted: 24 Nov 2009 Last revised: 6 May 2010

See all articles by Daphne Barak-Erez

Daphne Barak-Erez

Tel Aviv University - Buchmann Faculty of Law

Matthew C. Waxman

Columbia Law School

Date Written: November 19, 2009

Abstract

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.

Suggested Citation

Barak-Erez, Daphne and Waxman, Matthew C., Secret Evidence and the Due Process of Terrorist Detentions (November 19, 2009). Columbia Journal of Transnational Law, Vol. 48, No. 003, 2009; Columbia Public Law Research Paper No. 09-218. Available at SSRN: https://ssrn.com/abstract=1511858

Daphne Barak-Erez

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Matthew C. Waxman (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-0592 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/fac/Matthew_Waxman

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