Civilians Can Keep Secrets Too: Trying Terror Suspects in Federal Courts Commentary
Civilians Can Keep Secrets Too: Trying Terror Suspects in Federal Courts
Edited by: Jeremiah Lee

JURIST Guest Columnists Victor M. Hansen and Lawrence M. Friedman of New England School of Law say that while there may be reasons not to try terror suspects in civilian courts in the United States, the problem created by the need to safeguard classified information is not one of them….


Today, almost eight years after the terrorist attacks of September 11, debate continues over whether the United States should try the suspects being held at Guantanamo Bay in military commissions or in civilian courts, or in some combination of the two, depending on the suspect and the allegations. One of the arguments that has been made repeatedly is that a problem with trying terrorism suspects in civilian courts is the potential disclosure of classified information. The risk that such information may be revealed in the course of a trial is unreasonably high, the argument goes, and the more flexible rules governing military commissions are therefore preferable.

The premise of this argument does not withstand close consideration. Judges in our federal district courts have multiple tools at their disposal to ensure that no classified information is revealed beyond what is necessary for the lawyers on both sides of the case to do their jobs.

Indeed, the current rule governing classified information in the military commissions reads very much like the Classified Information Procedures Act (CIPA) and equivalent rule governing military courts-martial. As the military commissions in Guantanamo have continued to evolve to resemble ordinary military courts-martial, moreover, with evidentiary rules and procedures that favor fairness over expediency, they have demonstrated ways in which classified information necessary to hearings nonetheless can be protected.

In a Guantanamo Bay hearing room, for example, observers are separated from the commission, lawyers and suspects by a glass partition. Sound from the hearing reaches observers via speakers and on a 40 second delay. This set-up allows the audio feed to be blocked if someone in the courtroom makes mention of classified material. A person in the courtroom monitors the proceedings and has the ability to mute them with a press of a button if classified information is discussed. When this occurs, a red light flashes so that everyone in the courtroom, and particularly the judge, is aware that classified information is being discussed.

One of us recently had the opportunity to observe hearings in Guantanamo. At a hearing concerning the 9/11 co-conspirators, this system of muting classified evidence was employed for a brief period. Observers were not able to hear what was being said and, as important, when the audio feed returned the judge cautioned the defense counsel not to discuss the classified topics in this forum—there was a classified session of the hearings scheduled for later that afternoon to which the public was not invited. The judge made factual findings on the record stating that the interest in national security outweighed the public's right to know in respect to the matters that would be discussed at the closed hearing. Even though the public would be excluded from the hearing, the accused and counsel would be present. This system appeared to function in an orderly fashion.

As President Obama and his advisers continue to consider what to do with the detainees at Guantanamo and whether any of their cases should be tried in civilian courts in the U.S., we would do well to remember that the need to safeguard classified intelligence information need not preclude the fair administration of justice in American courts of law. Civilian judges, like their Commission counterparts, are capable of striking the appropriate balance in determining whether the discussion of certain information must be confined to the attorneys and the suspects, and also of taking the steps necessary to ensure that such information is not inadvertently disclosed.

And, while the debate over where to try the detainees continues, the federal district court in Washington, D.C. continues to entertain habeas petitions from the detainees and evaluate their merit. Like the military commissions, the judges on the district court have proved themselves fully capable of protecting classified information while at the same time ensuring the suspect a fair hearing. There may be reasons not to try terror suspects in civilian courts in the United States, but the problem created by the need to safeguard classified information is not one of them.

Lawrence Friedman and Victor Hansen teach constitutional law and criminal law courses, respectively, at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, has just been published by Ashgate.
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