Just so you know, the issue of the use of classified information even in normal federal courts is somewhat unclear, so this problem isn't limited to the procedurally deficient GTMO military commissions. The Classified Information Procedures Act (CIPA) was mostly intended to deal with defendants seeking to discover/use classified materials, and is the source of the redaction & substitution procedures that are discussed above. It's not an ideal arrangement, but not so terrible either. The same is true of having cleared defense counsel see classified information that the defendants can't. It ends up being a balance between having a vigorous defense versus being able to having a pro se defense (although admittedly the former can be undermined when the defendant isn't privy to all the information).

Some analogous things happen in organized crime cases.

I'm in no way a defender of the military commissions–or proposed national security courts–but you should know that some of what's going on down there is already sanctioned by the Supreme Court, or would likely be.

-NJC

Just so you know, the issue of the use of classified information even in normal federal courts is somewhat unclear, so this problem isn’t limited to the procedurally deficient GTMO military commissions. The Classified Information Procedures Act (CIPA) was mostly intended to deal with defendants seeking to discover/use classified materials, and is the source of the redaction & substitution procedures that are discussed above. It’s not an ideal arrangement, but not so terrible either. The same is true of having cleared defense counsel see classified information that the defendants can’t. It ends up being a balance between having a vigorous defense versus being able to having a pro se defense (although admittedly the former can be undermined when the defendant isn’t privy to all the information).

Some analogous things happen in organized crime cases.

I’m in no way a defender of the military commissions–or proposed national security courts–but you should know that some of what’s going on down there is already sanctioned by the Supreme Court, or would likely be.

-NJC