When the Curtain Must Be Drawn – American Experience with Proceedings Involving Information That, for Reasons of National Security, Cannot Be Disclosed

Résumé

Speaking about counter-terrorism in France today is a fraught subject, given the recent awful events that so dramatically illustrated the tensions between our precious liberties, and the steps that might be required to protect them. The impact of terrorism on liberty is, however, my subject. The Twenty-first Century’s wars against terror, like the Red Scare and Cold War of the Twentieth, have repeatedly put pressure on procedural values ordinarily observed in American adjudications. In criminal, civil, or administrative proceedings, tribunals may be faced with the government’s wish to rely on evidence that, for reasons of national security, cannot be disclosed to the private parties concerned in the matter. There may even be circumstances in which the government is unwilling to reveal to the tribunal itself information about the source of a fact proposition it wishes to assert – for example, the identity of a secret agent who has provided it or the manner in which an intercepted communication has been obtained. Similarly, the government may wish to resist a private demand for information, that ordinarily it would be obliged to supply, because it is a state secret – and, again, it may be unwilling to disclose the information even to the tribunal alone, as might be thought necessary to permit assessing the accuracy of its claim.