Methods used to exempt classified, terrorism-related information from disclosure In Criminal prosecutions
Owing to the sensitive nature of terror related information the disclosure thereof is highly restricted. In determining which information to disclose or the extent of such disclosure, a balance is struck between the constitutional right to access to information and the need to restrict the access to information that may compromise national security. This is especially so with terror related information the disclosure of which might have far reaching consequences to the state. The government thus relies on several mechanisms to avoid disclosing such information.
One approach has been the trial of terror suspects through a specialized system. This system comprises of military commissions created under the Military Commissions Act of 2006. The public does not have access to the proceedings of these commissions and by extension cannot access the terror related information. Though the commissions have been successful in preventing such disclosure, they have been largely ineffective in trying defendants (Schulhofer, 2010).
Accordingly, many trials have and continue to be tried in ordinary civilian courts. Even in such courts the government utilizes several methods to prevent disclosure of such information. One approach is through the Classified Information Procedures Act through which classified information that is not necessary to the resolution of the case is filtered. The government utilizes this statute to disclose only that which is relevant to the suit. Accordingly, they are able to prevent the disclosure of other information which ordinarily would be subject to disclosure.
Another way of ensuring limited access is through reduction or deletion of sensitive information in classified documents availed to the defendant. Alternatively a summation of the sensitive information can be provided. Further in the alternative an admission of the facts that the information would have proved may suffice (Abrams, 2012).
Another method is preventing public access in proceedings where such information may be disclosed. The authority to prevent such access is provided for by the Classified Information Procedures Act. Another approach is the invocation of the silent witness rule in prosecutions where a protective order would not apply to the information. Under the rule the witness only points to the relevant parts of the classified document without openly divulging its contents. Such as so, the document is still used as evidence but the contents are not made public.
Methods used to exempt classified, terrorism-related information from disclosure in a request under the Freedom of Information Act
The Freedom of Information Act provides for the right of access to federal agency records provided that the disclosure is not exempted under the Act. A person requiring any such information has to make a request to the FOIA office which then sends the request to the office/agency that might have the desired information. The office/agency must disclose the information requested unless it falls within the exemptions stipulated under section 552(b) of the Act.
In instances where a record requested contains some exempted information, the specific provision providing for the exemption is noted on the part where the undisclosed information would have been. Ideally the government withholds any information that falls within the exemptions. Section 552(b) lists nine statutory exemptions. Some of the exemptions used to prevent disclosure of terror related information are discussed hereunder.
Section 552(b) (1) exempts any classified information from being disclosed in a request. Classification of information is done through an executive order which requires the information to be kept secret for purposes of national security and foreign policy. This approach is the most readily used by the government to prevent disclosure of terror related information. Such information is simply classified as secret and cannot be disclosed to unauthorized persons. Such is the effectiveness of this exemption that agencies are allowed to neither confirm nor deny the subsistence of such information.
Section 552(b) (3) exempts from disclosure any information exempted by another statute provided that the statute leaves no room for discretion in determining disclosure and it establishes criteria for non-disclosure. This provision has been utilized to anchor exemptions provided under other statutes. This gives authority to the government to enact statutes exempting from disclosure specific kind of information. An example of such a statute specifically applying to terror related information is the Military Commissions Act of 2006.
The government also relies on the exemption under section 552(b) (5) which exempts inter or intra agency information that is not ordinarily available unless the requesting agency is in litigation with the agency to which the request is made. Accordingly, this exemption has been used to deny requests for terror related information held by agencies. This approach has been readily used by security agencies like FBI and CIA to withhold terror related information obtained in joint operations.
The highlighted exemptions specifically apply in relation to terror related information. The government can however rely on the other exemptions in cases where such information relates to: agency rules, confidential commercial information, geological and geophysical information, personal privacy, financial agencies records and law enforcement.
References
Abrams, N. (2012). Anti-Terrorism and Criminal Enforcement (4th Ed) Minnesota: Thomson
West.
Classified Information Procedures Act, 18 U.S.C. app. § 3, (2008).
Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L. 103-359.
Military Commissions Act of 2006, 10 U.S.C.A.
Schulhofer, S. J. (2010). Prosecuting Suspected Terrorists: The Role of the Civilian Courts. The
The Freedom of Information Act, 5 U.S.C. § 552.
United States v. Moussaoui, 2002 WL 1987964, 1 (E.D. Va. 2002).
