Misunderstandings of the Classified Information Procedures Act (CIPA), and confusions between CIPA and the state secrets doctrine, have resulted in a split in federal circuit courts over how CIPA functions. Congress should amend the statute to end this confusion and enhance its original goals—to enable discovery to protect a defendant’s rights and to protect intelligence sources and methods vital to the national security of the United States.
The demand for trained and educated national security lawyers, including those in the military, is not going to lessen. The challenge is to meet the increasing demand with shrinking resources. The military services must first identify national security law as a core, mission-essential discipline. The services should integrate the joint and perhaps inter-agency legal community into the existing process for identifying and deconflicting legal education requirements. The services should also consider whether lawyers can learn certain aspects of national security law through civilian legal education and distance learning rather than brick-and-mortar military schoolhouses.
This article explores the tension between the policy objectives of United States counterterrorism efforts (deterrence, incapacitation, and intelligence gathering) and the traditional legal frameworks used to justify them (the law of war and the criminal justice model). All three branches of government, the author urges, have worked at cross-purposes in developing a counterterrorism policy that sacrifices legality and principle. A better approach would be to adopt a hybrid, flexible framework that recognizes that terrorism is a serious threat requiring the use of the law of war in some cases but protects against government overreach by relying on the best instincts of the criminal justice model and its promotion of our core values of freedom and liberty.