habeas cases. 15 This is highlighted in further detail below. It is therefore important to gain an appreciation of the main procedural rules provided for in CIPA before assessing the relevant procedure in Guantanamo habeas cases.
II – KEY PROCEDURAL RULES UNDER CIPA [A] Definition of classified information Section 1 defines classified information as: “any information or material that has been determined by the United States Government pursuant to an Executive order, statute or regulation, to require protection against unauthorized disclosure for reasons of national security and any specified types of restricted data.” “National security” as used in the Act means “the national defense and foreign relations of the United States”. 16
[B] Pre-trial Conference Section 2 provides that a pre-trial conference must be held if either party to the litigation requests one or if the court initiates one of its own motion. The purpose of such conferences is to establish the timing of requests for discovery, the provision of notice required by the defendant in section 5 of the Act and the initiation of the procedure established by section 6 of the Act regarding the determination of what classified information may be presented at trial.
[C] Discovery of Classified Information by the Defendant Section 4 of the Act provides: “The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 15
Habeas Works: Federal Courts’ proven capacity to handle Guantanamo cases, A report from Former Federal Judges (June 2010), p. 17; See also Al Odah v United States No. 05-5117, 2009 WL 564310, at 7 (D.C. Cir. Mar. 6, 2009). 16 CIPA, section 1(b).
5