Weaknesses of Adjudication in the Face of Secret Evidence
| DOI | 10.1350/ijep.2009.13.1.308 |
| Published date | 01 January 2009 |
| Date | 01 January 2009 |
| Subject Matter | Article |
ADJUDICATION IN THE FACE OF SECRET EVIDENCE
Weaknesses of
adjudication in the face
of secret evidence
By Gus Van Harten*
Assistant Professor, Osgoode Hall Law School, York University,
Toronto
Abstract Since 2001, governments in Canada and the United Kingdom appear to
have increasingly sought to use secret evidence in proceedings against
individuals suspected of posing a security threat, relying on the courts to review
and legitimate executive claims in closed proceedings. Yet, in the face of secret
evidence, adjudicative decision-making is subject to several extraordinary
weaknesses. First, the judge is precluded from hearing additional information
that can come to light only if the individual or the public is aware of the
executive’s claims. Secondly, courts are uniquely reliant on the executive to be
fair and forthcoming about confidential information and to characterise
accurately the case for secrecy. Thirdly, the dynamic or atmosphere of closed
proceedings may condition a judge to favour unduly the security interest over
priorities of accuracy and fairness. Even where the use of secret evidence is not
deemed to be irreparably unsafe or unfair, therefore, its admissibility must be
premised on the acknowledgement and careful consideration of corresponding
weaknesses in adjudication.
Keywords Closed proceedings; Confidentiality; National security; Judicial
review
ecrecy is the source of a contradiction in the democratic state. While
secrecy may be essential to the state’s ability to ensure security, it also
prevents citizens from making informed choices about how they wish to
doi:1350/ijep.2009.13.1.308
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S
* Former legal adviser to the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar, archival site: <http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/
maher_arar/index.html>.
Email: gvanharten@osgoode.yorku.ca. I wish to thank Mark Aronson, Conor Gearty, Tom Poole,
Paul Roberts, Craig Scott, James Stribopoulos, and the anonymous reviewers of the article for their
helpful comments. All views and opinions expressed are those of the author.
be governed.1Secrecy may be essential because the state must in some cases act in
confidence to protect against clandestine threats; put simply, in the words of a
judge of Canada’s Federal Court, ‘secrecy is required in order to counter the activ-
ities of those who operate in secret’.2To entrust security to the state is therefore to
accept a measure of hidden government. Yet by precluding public scrutiny this
trust in the state makes official error and abuse more likely. Bentham described
publicity as ‘the very soul of justice … the keenest spur to exertion and the surest of
all guards against improbity’3and there is no surer spark for cynicism about
government than the knowledge that those in power may lawfully conceal their
activities from outside scrutiny.4For this reason, allowances for state secrecy call
for special mechanisms of accountability.
The tensions arising from secrecy inform much of the debate about the
relationship between national security and law. They reflect the underlying
conflict of interest in hidden government whereby those who wield security
powers also decide what to reveal to the public about their mistakes or misdeeds.5
This article focuses on how this conflict has the potential to infect the adjudicative
process where secret evidence6is relied on, purportedly for security reasons, in
proceedings that affect an individual. Since 2001, governments appear to have
increasingly resorted to secret evidence in cases against those suspected of
involvement in terrorism and, as a result, courts have been asked in closed
proceedings to validate executive claims that an individual poses a security
threat.7Such proceedings entail judicial review both of confidential information
2 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
ADJUDICATION IN THE FACE OF SECRET EVIDENCE
1 J. S. Mill, On Liberty and Considerations of Representative Government (Penguin Books: London, 1974)
77–9.
2 E. Dawson, ‘The Federal Court and the Clash of the Titans: Balancing Human Rights and National
Security’ (2006) Address to the University of Manitoba Faculty of Law, 30 March 2006
<http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Speeches>, accessed 16 October
2008.
3 J. Bentham, ‘Draught of a New Plan for the Organization of the Judicial Establishment in France’ in
The Works of Jeremy Bentham, vol. 4 (Tait: Edinburgh, 1843) 316.
4 Note, ‘Keeping Secrets: Congress, the Courts, and National Security Information’ (1990) 103 Harv L
Rev 906 at 910–14.
5 M. Rankin, ‘National Security: Information, Accountability, and the Canadian Security
Intelligence Service’ (1986) 36 UTLJ 249 at 252; S. D. Jordan, ‘Classified Information and Conflicts in
Independent Counsel Prosecutions: Balancing the Scales of Justice after Iran-Contra’ (1991) 91 Col L
Rev 1651 at1654–5; E. K. Yamamoto, ‘White (House) Lies: Why the Public Must Compel the Courts to
Hold the President Accountable for National Security Abuses’ (2004) 68 Law & Contemp Probs 285
at 288–9.
6 ‘Secret evidence’ is evidence to which the affected individual (and the public) is denied access;
‘closed proceedings’ are legal proceedings that permit secret evidence.
7 K. A. McKee, ‘Remarks on the Freedom of Information Act: The “National Security” Exemption in a
Post 9/11 Era’ (2007) 4 Regent J Int’l L 263 at 271–5; E. Yaroshefsky, ‘Secret Evidence is Slowly
Eroding the Adversary System: CIPA and FISA in the Courts’ (2006) 34 Hofstra L Rev 1063at 1081–3.
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