Secret Evidence Of The Courts In The Age Of National Security

Beyond Article III Courts: Military Tribunals, Status Neview Tribunals, and Immigration Courts

Introduction I.Framing the Issues II. The Debate A.David Cole's Remarks B.Brian Boyle's Remarks C. Gitanjali Gutierrez's Remarks D. Bradford Berenson's Remarks III.The Discussion Conclusion

Habeas Corpus, Judicial Review, and Limits on Secrecy in Detentions at Guantánamo

Introduction I. Guantánamo and the modalities of Secrecy II. Habeas Corpus Litigation at Guantánamo A.Habeas Litigation before Rasul B.Overview of Post-Rasul Habeas Litigation III. Habeas as a check on Secret Detentions at Guantánamo A. Access to Counsel B. Challenging the Factual and Legal Basis for Confinement C.Habeas Review of Transfer to Foreign Custody D.The Right to a Remedy for Unlawful Detention Conclusion

Panel Report: Investigative Journalism and National Security

Introduction I. The Panelists II. Framing the Issues III. Panelist Presentations A.Scott Armstrong B.Eve Burton C. Stephen Hayes D. Dana Priest IV. Mr. Lemann's Questions to the Panelists Conclusion

Panel Report: Issues in Article III Courts

Introduction I. The panel presentations A.The Judicial Perspective B.The Prosecution Perspective C.The Defense Perspective D. The Civil Litigator's Perspective II. The discussion

Panel Report: National Security Secrecy in the Courts: a Comparative Perspective from Israel and Ireland

Introduction I. Framing the Issues II. The Panel's Answers A.Secret Evidence for the Prosecution B.Access to Secret Evidence for the Defense C. Secret Proceedings? D. Alternative Procedures or Alternative Courts? III. The Discussion Conclusion

Privileged Evidence and State Security under the Israeli Law: Are we Doomed to Fail?

Introduction I. The Law of Privileged Evidence to Protect the State and Public Interest II. The Livny Case: The Interpretation of the Law III. The Abu Saada Case: A Failure to Obey the Law IV. Can it Happen Again? V. What Can Be Done? Epilogue

Secret Evidence and the Courts in the Age of National Security

Introduction

Secret Evidence in the Age of National Security

Secret Evidence in the Investigative Stage: Fisa, Administrative Subpoenas, and Privacy

Introduction I. The Panelists A.Judge Guy's Remarks B. Congressman Nadler's Remarks C.Karl Metzner's Remarks D. Jameel Jaffer's Remarks II. Discussion Conclusion

Sword or Shield? The Government's selective Use of its Declassification authority for Tactical Advantage in Criminal Prosecutions

Introduction I. Cipa's History and Purposes II. The Asymmetrical Nature of the Government's Declassification Authority III. There Is no Basis for the Government's Selective Declassification of Fisa Intercepts, and the Practice Violates a Defendant's Fifth and Sixth Amendment Rights IV. The Courts' Recent Responses to the Inequities Created by the Government's Selective Exercise of its Declassification Authority V. Proposals for Reforming Cipa in Order to Eliminate the Government's Use of its ...

The Slow Erosion of the Adversary System: Article III Courts, Fisa, Cipa and Ethical Dilemmas

Introduction I. Classified Information Procedures Act and Foreign Intelligence Surveillance Act in the Courts A. Fundamentals of the Adversarial System B. Classified Information Procedures Act C. Fundamental Ethical Conflicts for Diligent, Competent, Zealous Defense Counsel D. Foreign Intelligence Surveillance Act II. Secret Evidence Is Seeping into the Criminal Justice System III. Modest Proposals IV. Conclusion

The War on Terrorism in the Courts

This Article was originally delivered July 24, 2004 at the Thomas M. Cooley Law School's Distinguished Brief Award Banquet. 21 T.M. Cooley L. Rev. 159 (2004).

U.S. Sentencing Guidelines and Export Control Laws: How to Equate a Credit Card Transaction with a Violation of National Security Controls or Sselling 400 grams of Heroin

Introduction I. The legal landscape A. U.S. Treasury Prohibitions Against Engaging in Transactions with Certain Foreign Nations and Nationals. B.The USSG and Export Control Violations 1. Section 2M5.1's Application to National Security Controls 2. Section 2M5.1's Application to Financial Transactions with a Country Supporting International Terrorism. II. Analysis A. The Malum Prohibitum Nature of Export Violations Renders a Base Offense Level of 26 Particularly Harsh B.OFAC Regulations Prohib...

Articles

Whose Life Is It Anyway?

Introduction I. Methodology II. Context of Debate A. A Review of Basic Concepts and Fundamental Arguments B. Why is Euthanasia Controversial? III. The "Right to Die" Debate A. The Facts B. The Meaning of Life C. The Problem with Professional Judgment D. Absolute Rule v. Variegated Circumstances E. Are There Absolute Moral Values and Universal Human Rights? F. The Problem with the AMA Code of Ethics G. Active vs. Passive Euthanasia H. Compassion vs. Professionalism I. The Problem with Rationin...

Notes

Aiding the Final Push of the Digital Transition

Introduction I. The Digital Transition Before the DTV Transition and Public Safety Act A. The Stalled Digital Transition B. The Need for Transitional Dual-Carriage C. The Digital Cable Effect III. The New Transition Scheme A. Reliance on MVPDs and the Lack of a Conversion Requirement B. The Lack of a Sufficient Consumer Education Program C. The Sufficiency of the Subsidy for Converter Boxes D. Failure to Address Intent to Facilitate Emergency Communications IV. Public Policy Deficiencies in t...

Righting Wrongful Discharge: A Recommendation for the New York Judiciary to Adopt a Public Policy Exception to the Employment- At-Will Doctrine

Introduction I. History of the Employment-At-Will Doctrine II. Evolution of the Public Policy Exception to the Employee-At-Will Doctrine A. Texas B. Utah C. Ohio D. New Jersey III. New York State Courts' Lack of Progress Adopting a Public Policy Exception to the Employee-At-Will Doctrine IV. A Review of the Specific Tests Used by other Jurisdictions in an Effort to Create a Recommendation for New York Conclusion