Adjudicating Classified Information

(Excerpt) Part I of this Article briefly examines the existing legal and conceptual frameworks that purport to manage protected information in the judicial system. It compares and contrasts the civil and criminal approaches, and it notes challenges to the existing processes and proposed changes from policymakers and scholars. Part I also discusses the questions and problems raised by potential changes-and even by the status quo. Part II explores secret information: its creation by individuals and agencies; its synthesis into "finished" intelligence; its various uses; and the challenges it poses for the legal process. Part III offers three proposals for how courts should treat secret information to avoid or counteract the problems discussed and to maximize the interests of justice in criminal, civil, and nontraditional contexts. It argues that critical judicial responsibilities include: (1) reviewing information designated as secret, (2) applying appropriate skepticism to secret information and government claims, and (3) examining source material. Part III then reviews selected decisions in which courts have made judgments about protected information, and it discusses and evaluates these approaches.