Judge finds proper balance between due process and national security in Al-Haramain wiretapping case
“Classified information and court rooms usually just don’t mesh. And, this factor is at the very heart of the continuing dilemma we face in using our judicial system to deal with terrorism and terrorists. Terrorism cases pose very special investigative and court room challenges. The objective in many of these cases is to identify and to stop the terrorists, and to prosecute them, even before they act. And, when it comes to most financing-of-terrorism cases, the challenge is to be able to demonstrate a specific intent or mens rea even when the culprits employ well established charities and charitable works to mask their real intentions. This often necessitates the use of sensitive intelligence gathering methods in addition to normal investigative procedures. But, the real difficulty arises when it comes to turning this classified information into evidence that can be used for the purposes of prosecution in open court. And, when this is impossible, we have to seek to balance the protection of our sensitive intelligence sources and methods so essential to our national security with our deep felt commitment to due process, judicial fairness and justice, as well as to maintain accountability and to assure against abuse.
It appears to me that U.S. District Court Chief Judge Vaughn Walker has done a truly remarkable job weighing and balancing these factors. His ruling in the Al-Haramain Oregon NSA wiretapping case, which was just upheld by a ninth circuit three-judge panel, sets forth a set of procedures that may well become the template for the future handling of classified information in such cases. I leave to others to comment on the many legal intricacies involved in the ruling. For my part, I am content that the court found a way to allow limited, but essential access to classified information critically relevant to the merits of that case.
Short URL: http://tinyurl.com/y9vwof4