Forensics Journal - Stevenson University 2014 | Page 57

STEVENSON UNIVERSITY

In 1980 Congress passed the Classified Information Procedures Act
(CIPA) in an effort to address mounting concerns related to the
introduction of classified material in criminal proceedings. According
to Melanie Reid, CIPA was not intended to “alter the Federal Rules
of Evidence,” but was rather intended to provide a procedural framework (Reid, 274). CIPA is not a foolproof remedy. Just as judges are
granted discretion in determining the value and weight of evidence
in habeas hearings, they are also the ultimate authority in determining what classified material is inherently relevant to the issue at hand.
Stephen Schulhofer asserts that “CIPA requires the judge to make
difficult determinations about precisely what information should be
disclosed to the defense and what information should be withheld”
(Schulhofer, 65). This wide scope of authority creates tension between
the government and the defendant(s), as governmental interests and
individual rights to a fair trial may be in conflict. The presiding judge
has the final say in what is admissible and what is inadmissible.

While CIPA was not drafted with the GWOT in mind, it is the current accepted framework being utilized to address issues arising from a
non-traditional war environment. There is no readily available remedy
to appease the critics; however, some solutions have been proposed,
such as a “National Security Bar” (Litt and Bennett, 13). As proposed
by Litt and Bennett, “Congress should establish a National Security
Bar, consisting of lawyers with the highest level of security clearance.
These lawyers would agree to be available for appointment to represent defendants in terrorism-related cases” (Litt and Bennett, 13). The
courts will continue to review the procedures outlined in CIPA in
order to make them more applicable to the current, ongoing war.
GATHERING EVIDENCE
Gathering sufficient evidence during an active military operation is
a difficult task at best. Professionals have developed an across-theboard standard; however, new approaches are being examined. While
a range of theories are available for consideration, they all seek to
address the same fundamental issue: how can one effectively collect
and maintai