Christopher W. Behan, Military Commissions and the Conundrum of Classified Evidence: A Semi-Panglossian Solution, 37 S. ILL. UNIV. L. J. 643 (2013).
This article argues that the classified evidence procedures in the Military Commissions Act of 2009 are a flawed solution to the problems posed by classified information in military commissions. On paper, they are superior to procedures in the Classified Information Procedures Act or the Military Rules of Evidence, but they are forever flawed because of three irreparable defects in the military commissions. First, the detainees are still monitored and treated as active sources of intelligence in the War on Terror, thereby generating an endless flow of new classified information to be processed. Second, many detainees cannot adequately defend themselves without disclosing classified information pertaining to their own interrogations or those of other witnesses. Third, serious separation of powers issues exist because all parties involved with decisions to declassify, disclose, or admit into evidence classified information are part of the Executive Branch. Executive Branch intelligence agencies, therefore, exercise a disproportionate influence over information flow in military commissions that they would not be able to exert in an Article III court.