Joshua Dratel, a federal criminal defense lawyer in private practice and an advisor to the National Association of Criminal Defense Lawyers on the representation of high-value detainees, discussed United States procedures regarding the classification of information with Professor Sikkink's Human Rights and Democracy class on October 1. Dratel represented Guantanamo detainee David Hicks in front of a military commission.
Policymakers initially drafted the Classified Information Procedure Act (CIPA) to prevent the misuse of information in espionage cases. Would-be defendants would use a technique known as "gray-mailing," in which they would threaten to use classified information in their defense, thus making the information public. Because the federal government did not want the information to be made public, the would-be defendants escaped the potential for trial.
The so-called "State Secret Doctrine," as originated in Reynolds v. United States, allows information to be kept out of the courtroom if releasing the information could threaten national security. However, the classified documents in the Reynolds case were declassified years after the case, and the information had nothing to do with national security interests. While the State Secret Doctrine can be used correctly, it also can be abused.
The executive order that created the category of classified information clearly described in what instances information could be classified. Culpability and potential for embarrassment are not valid reasons to keep information classified. Without transparency, which of course stands directly opposed to classified information, there is no way to know if the State Secret Doctrine or other classification standards are being implemented properly.
The principles delineated in CIPA aim to protect the security of government information while also respecting the rights of defendants. The federal government is allowed to substitute a revised version of classified documents. The substitute documents theoretically include any exculpatory evidence without revealing any classified information. A judge reviews the documents to ensure that as much information as possible is released. This review provides some oversight, but ultimately the government does decide what information to include in the substitute documents.
This process handcuffs the defense in some ways. The defense team, unlike the government prosecution, does not know full nature of information. Moreover, a substitute document will never have the same impact in a courtroom that a witness testimony has.
According to Dratel, the principle issue in question when considering secrecy and international human rights law is torture. Certain procedures were developed to reduce the possibility for accountability for those rationalizing, approving, and committing torture.
The changes made in the United States legal and penal systems following 9/11 have damaged foreign government confidence in US procedures. Dratel cited examples from the United Kingdom and Germany to prove this point. The UK is currently holding six terrorism suspects, but refuses to extradite these individuals to the US until there is more transparency in proceedings and the possibility of trial by a military tribunal is eliminated. The German government is said to have information that would supplement certain terrorism cases in the US. However, officials refuse to surrender that information until the death penalty is lifted as a potential punishment in those cases.
Dratel reminded the audience that the misuse of classification of information adversely affects "not just the rights of defendants but also the rights of the public in a democracy."
Written by Whitney Taylor.