CoseNZa, Isabella --- "Open Justice and National Security Cases: the ALRC Inquiry Into Protecting Classified An" [2004] ALRCRefJl 12; (2004) 84 Australian Law Reform Commission Reform Journal 50

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Reform Issue 84 Autumn 2004

This article appeared on pages 50 – 54 & 71 of the original journal.

Open justice and national security cases: The ALRC inquiry into protecting classified and security sensitive information

By Isabella Cosenza*

Events in recent years have spurred the ongoing debate about reconciling the need for open justice and fair trials with the legitimate need for protecting classified and security sensitive information.

The criminal prosecutions of David Shayler in the United Kingdom, Zacarias Moussaoui in the United States and Simon Lappas in Australia have highlighted these issues most starkly. The public interest in protecting such information by avoiding or limiting its disclosure, and the right of an individual to a fair hearing, are acutely at odds where classified or security sensitive information is central to an indictment, such as in a prosecution for espionage or unauthorised disclosure of official secrets, as opposed to matters where such information is incidental.

Cases involving espionage, terrorism and the leaking of national security information have been quite rare in Australia;^[1] and courts and litigants already have a range of mechanisms at their disposal to protect sensitive information. However, the prosecution of Lappas, a former defence intelligence analyst, for passing classified information to an unauthorised person highlighted some shortcomings in our present legal system for dealing with such matters.

The ALRC’s challenge in its current reference concerning measures to protect classified and security sensitive information in the course of investigations and proceedings is to seek to remedy those deficiencies, and to otherwise improve the existing system, by devising mechanisms (or clearly articulating and consolidating existing mechanisms) that better reconcile the various competing public and individual interests. These interests include protecting national security information, facilitating the prosecution of persons who have committed acts of espionage or terrorism, maintaining the integrity of the judicial process, and ensuring that a person’s right to a fair and open trial is protected.

The International Covenant on Civil and Political Rights (ICCPR), which has been ratified by Australia, provides for public hearings and public judgments; however, it also allows for closure of courts for national security reasons. A more controversial threat to the principles of open justice is the leading of secret evidence in trials and the conduct of secret hearings. The United Kingdom Home Secretary has aired the prospect of secret or part-secret trials for terrorist suspects. In criminal trials, the ICCPR guarantees certain minimal procedural protections to an accused person including the right to be present at one’s own trial, and to call and examine witnesses. The ALRC is bound by its governing Act to ensure that any proposals or recommendations it makes do not trespass unduly on personal rights and liberties, and are, as far as practicable, consistent with the ICCPR.^[2]

The Lappas case: impetus for reform

The Lappas proceedings demonstrated that, not least because there have been so few such cases in Australian courts, there was no clear outline of procedures that should or could have been adopted in presenting security sensitive information to the Court, and that the current statutory statement of public interest immunity^[3] was inflexible and led to an undesirable outcome.

Lappas was charged with offences under s 79(3) and s 78(1)(b) of the Crimes Act 1914 (Cth). At the trial, the Crown made a claim for public interest immunity under s 130 of the Evidence Act 1985 (Cth) in relation to two documents sourced from a foreign power. It sought to tender ‘empty shells’ of the documents and to lead oral evidence explaining the general character of their contents. The trial judge upheld the claim for public interest immunity, ordering that the documents not be adduced as evidence. However, the trial judge also ordered that the charge under s 78 be stayed as he queried whether the accused could have a fair trial unless more of the text of the documents was disclosed to enable him to give evidence concerning it. In any event, s 134 of the Evidence Act prevented any secondary evidence of the documents’ contents being admitted into evidence.

Significantly, the trial judge found it regrettable that the Crown’s claim for public interest immunity was made at such a late stage of the proceedings. Not only did that raise the issue of whether the accused could be afforded a fair trial but it also seemed to prevent the prosecution from adducing evidence highly relevant to its own case.^[4]

The case has been an impetus for the ALRC to propose a pre-trial mechanism dealing specifically with the use, relevance, disclosure and admissibility of classified and security sensitive information. This is dealt with under the heading ‘Pre-hearing mechanism’ below. The case also highlights the need for court-approved alternatives to full disclosure of sensitive material. The Classified Information Procedures Act (US), the Code of Practice (UK)^[5] and the Canada Evidence Act all provide for court-approved alternatives to full disclosure. However, there is no Australian legislative provision or court rule allowing, for example, an unclassified summary of information to be substituted for classified information, allowing for the substitution of unclassified information for classified information, or specifically allowing for redaction (the editing of a document to obscure sensitive parts). Nevertheless, redaction appears to be used as a matter of practice. To address this deficiency, the ALRC has proposed that a dedicated new Act—a National Security Information Procedures Act—deal with the use of classified and security sensitive information in all stages of proceedings in all courts and tribunals. The proposed new Act is discussed in more detail below.

Overseas prosecutions

High profile national security cases conducted overseas include the prosecutions of former MI5 officer David Shayler, who was convicted for breaching the Official Secrets Act 1989 (UK),^[6] and the prosecution in the United States of Zacarias Moussaoui, an alleged conspirator in the attacks against the World Trade Centre and the Pentagon on 11 September 2001.

The trial judge in Shayler’s trial was satisfied that there was a risk that Shayler might, “either in the course of cross-examination or in the course of evidence adduced by him or through other witnesses, disclose matters that themselves may cause a risk of damage to national security or put [a] person in danger”.^[7] Given the dilemma of identifying in sufficient time when an issue might arise concerning Shayler’s intention to raise such matters, the judge accepted a procedure suggested by the Crown as an alternative to in-camera proceedings. The Court ruled that:

“If the defendant wishes to raise any matter relating or purporting to relate to security or intelligence, he must give the Court advance notice of that, be it raised in the form of questions to any witnesses or once the Crown case has closed, should it be necessary and the case go any further in relation to any evidence he wishes to adduce.”^[8]

Shayler appealed to the Court of Appeal on the ground that his conviction was unsafe because, among other things, the cumulative restrictions imposed upon him deprived the proceedings of the character of an adversarial criminal trial. In dismissing his appeal, the Court of Appeal stated that the judge’s ruling:

“did not require the applicant to give notice of the questions he proposed to ask, or to provide any proof of evidence of himself or his witnesses. All he had to do was to give notice of any matter relating or purporting to relate to security or intelligence which he wished to raise.”^[9]

The Shayler case emphasises the merit in having in place a mechanism which requires pre-trial disclosure by all parties of an intention to lead or cause the disclosure of national security information, and gives the court flexibility to deal with unexpected disclosures of such information during trial.

In the US, the current proceedings against Zacarias Moussaoui illustrate the particular difficulties in affording a self-represented accused in a terrorist-related trial all the guarantees of a fair trial while simultaneously safeguarding national security.^[10] Prosecutors unsuccessfully challenged a court order allowing Moussaoui access to Ramzi bin al-Shibh, an al-Qaeda prisoner held in secret detention alleged to have information important to the defence, on the basis that such access could harm a sensitive key interrogation and threaten national security. The defence applied for a dismissal of the case against Moussaoui on the basis that the Government’s failure to produce the key witnesses would prevent Moussaoui from receiving a fair trial. The trial judge rejected the application for outright dismissal of the charges. Instead, she removed the death penalty as a possible sentence for Moussaoui and barred the use of any evidence relating to his involvement in the attacks on 11 September 2001 stating that:

“It would simply be unfair to require Moussaoui to defend against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting those accusations.”^[11]

Need for a pre-trial mechanism

Classified or security sensitive information may emerge during the investigation or pre-trial stages of a matter as part of the processes of discovery and disclosure, as well as during the presentation of evidence during proceedings.

In criminal proceedings, the prosecution has an obligation to disclose all material that is to be used in its case, as well as “unused material” that the prosecution does not intend to rely upon as part of its case and “either runs counter to the prosecution case (ie, points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence”.^[12] Accordingly, the following issue arises—how can the prosecution discharge its obligation of disclosure, which plays a significant part in ensuring the accused’s right to a fair trial, while protecting classified and security sensitive information upon which it seeks to rely or which would otherwise arise in the case?

An accused person does not carry any comparable general obligation of disclosure on the basis that the prosecution is required to prove its case without assistance from the defence. However, there are some specific obligations of disclosure imposed on the accused in most jurisdictions in Australia. For example, there are defence disclosure requirements in relation to the leading of expert evidence,^[13] and alibi evidence.^[14] Given the defence’s limited obligations of disclosure in criminal matters, does the Australian system adequately cater for ‘greymail’ threats where the defence presents the prosecution with the choice of either allowing the classified information to be disclosed, or dismissing or compromising the indictment or charges?

In its Discussion Paper 67, Protecting Classified and Security Sensitive Information, the ALRC has proposed a legislative scheme (forming part of its proposed National Security Information Procedures Act) which would require parties to proceedings in which classified and security sensitive information is likely to arise to inform the court and the other parties accordingly once they become aware of this possibility. This would entail, subject to any orders given by the court, a requirement that all parties to a proceeding file and serve lists of all classified and security sensitive information that they reasonably anticipate will be used in the proceedings, either in their own case or in rebuttal to the case of any other party.

The mechanism should deal with both the pre-trial disclosure of material in criminal proceedings and discovery, subpoenas, interrogatories and witness statements in civil proceedings, as well as the use of all such material at trial or any final hearing. In 1984, Justice Hope, presiding over the Royal Commission on Australia’s Security and Intelligence Agencies, stated that the Classified Information Procedures Act (US) (CIPA), which sets out a pre-trial procedure for determinations in relation to the use of classified information

“facilitates the making of informed judgments about the extent to which it might be necessary for classified information to be disclosed in the course, for example, of a prosecution for espionage. I suggest that consideration be given to the need for legislation in Australia to assist the Commonwealth in coping with problems of that kind should they arise.”^[15]

The ALRC is not aware of any subsequent move to adopt Justice Hope’s recommendation.

The ALRC understands from its consultations that CIPA has been reasonably well received in the United States, forcing the prosecution to make certain decisions in relation to its case relatively early, before investing a lot of government resources. A mechanism such as that set out in CIPA would have the benefit of providing a framework for the ventilation of issues relating to the disclosure, admissibility and presentation of classified or security sensitive material well before trial. For example, if in Lappas the defence had been required to give formal pre-trial notification of all security sensitive documents on which it sought to rely, and the prosecution had been required to give pre-trial notification that there was an issue in relation to the use of the foreign security sensitive documents in issue, the Crown’s claim for public interest immunity could have been dealt with prior to trial. Even if the ultimate outcome were to be that the Crown could not pursue any or some of the charges on the indictment, at least that would have been ascertained in advance with less disruption to the running of the trial itself.

Drawing on similar provisions in the Canada Evidence Act, the ALRC has also proposed that, if the government agency concerned with the sensitive material is not a party, or if the case is not a prosecution by the Commonwealth Director of Public Prosecutions the court must notify, or must direct a party to notify, the Australian Attorney-General to ensure that the appropriate government agency is aware of the possible disclosure of classified or sensitive national security information. The Attorney-General would have the right to intervene in the proceedings, but only in relation to issues concerning the use of classified information. The Attorney-General would retain the right to decline to allow certain information to be used in proceedings in order to protect the security or defence of the Commonwealth. However, the court would retain the power to determine, how, if at all, the case should proceed in light of any such refusal.

A new National Security Information Procedures Act

The ALRC has proposed a new piece of legislation to deal specifically and solely with the protection and use of classified and security sensitive information in all Australian courts and tribunals. It has proposed a dedicated new Act—the National Security Information Procedures Act—to deal with the issue, as opposed to placing the scheme in the Evidence Act 1985 (Cth) or other legislation that deals with court procedure generally to stress the exceptional nature of the procedures it authorises. The Act would give the court the powers to make orders determining the relevance and admissibility of any classified or sensitive national security information and the form in which it may be tendered as evidence or otherwise used in the proceedings, to meet the exigencies of the particular case. Such orders may include:

• replacing the classified material with court approved summaries of sensitive material or with evidence to similar effect obtained through unclassified means or sources;

• allowing the sensitive evidence to be admitted after it has been redacted or edited;

• the use of written questions and answers during otherwise oral evidence;

• using closed circuit televisions, computer monitors, headphones and other technical means to hide the identity of witnesses or the content of sensitive evidence in otherwise open proceedings;

• restricting access to sensitive material (for example, limiting access to persons who have an appropriate security clearance);

• closing all or part of the proceedings to the public; and

• hearing part of the proceedings in the absence of one of the parties and its legal representatives—but never in criminal prosecutions, and only in other exceptional cases, subject to a number of safeguards, some of which are outlined below under the heading ‘Secret Evidence’.

The court should have the flexibility to deal with sensitive evidence raised unexpectedly at the hearing, which could entail requiring a party to provide the court with a proffer of a witness’s response to a question where there is a concern that the testimony will reveal sensitive information.

The court should also retain the power to dismiss, stay or strike out all or part of a party’s case where that is required in the interests of justice.

Secret evidence

To sanction the leading of secret evidence in a criminal prosecution would be in breach of the protections provided for in Article 14 of the ICCPR for an accused to be tried in his or her presence and to have the opportunity to examine any adverse witnesses. Where secret evidence is central to the indictment, to allow it to be led would breach basic principles of a fair trial, and could constitute an abuse of process. Further, legislation that either requires or authorises a court to hear classified and security sensitive information in the absence of the accused runs a real risk of infringing Chapter III of the Australian Constitution as it could be legitimising or mandating a process not in accordance with judicial process.

However, some tribunals already have the power, or are required by statute, to rely on secret evidence. Secret evidence may also be led in civil proceedings involving a judicial review of administrative procedures based on evidence withheld from a party. The ALRC has expressed the preliminary view that, in light of the potentially serious consequences that can flow from reliance on secret evidence (such as deportation), secret evidence in non-criminal proceedings should only be used as a last resort and subject to certain safeguards, including:

• before consenting to any application that the evidence be led in secret, the court or tribunal should consider alternative methods of presenting that evidence such as summaries and redactions—which are to be approved by the court or tribunal before use;

• the affected person should always be represented by a lawyer, even if that lawyer is not one of the person’s choosing, but rather a court-appointed lawyer holding any requisite security clearance;

• any tribunal proceedings involving secret evidence should be heard by a judicial member of the tribunal; and

• the affected person should always be notified of the fact that secret evidence is being used against him or her.

Conclusion

The conundrum of resolving the tension between open justice and a proper need for secrecy in court proceedings is not new. However, in our current security-conscious environment a cautious and principled approach must be taken to ensure that any proposed mechanism to resolve the tension does not unduly interfere with individual rights and the integrity of the judicial process itself. Any departures from the usual principles of fair trials and open justice should be strictly limited to those necessary to protect the national interest.

The case for a pre-trial legislative mechanism to ventilate issues relating to national security information is compelling. While some of the mechanisms that the ALRC has articulated for inclusion in it proposed National Security Information Procedures Act are not novel (as tools such as redaction, closure of proceedings and suppression orders have been used by the courts to protect commercially sensitive information or intelligence arising from undercover police investigations), the consolidation of procedures and options available to a court dealing with national security matters, drawing on and adapting existing national and international practices, is itself a worthwhile endeavour.

* Isabella Cosenza is a Senior Legal Officer at the Australian Law Reform Commission.

Endnotes

{1} Other prosecutions under counter-espionage criminal law include Grant v Headland (1977) 17 ACTR 29, which involved a charge under s 79 of the Crimes Act 1914 (Cth), and the prosecution of George Sadil in 1994.

{2} See Australian Law Reform Commission Act 1996 (Cth), s 24.

{3} See Evidence Act 1995 (Cth), s 130 and 134.

{4} R v Lappas and Dowling [2001] ACTSC 115, [18]–[19].

{5} See Code of Practice Issued under Part II of the Criminal Procedure and Investigations Act 1996 (UK), 1 April 1997.

{6} Shayler was convicted of disclosing documents contrary to the Official Secrets Act 1989 (UK), s 1(1); disclosing documents obtained by interception of communications, contrary to s 4(1) of the Act; and disclosing documents purporting to relate to security or intelligence, contrary to s 1(1) of the Act. He was sentenced to six months’ imprisonment on each count, to be served concurrently.

{7} R v Shayler [2003] EWCA Crim 2218, [21].

{8} Ibid, [1].

{9} Ibid, [21].

{10} In November 2003 the trial judge revoked Moussaoui’s right to represent himself and appointed his standby attorneys to represent him.

{11} United States v Moussaoui (Unreported, US District Court for the Eastern District of Virginia, Brinkema J, 2 October 2003), 13.

{12} Commonwealth Director of Public Prosecutions, Statement on Prosecution Disclosure, <www.cdpp.gov.au/prosecutions/disclosure/>, E2.

{13} For example, see Crimes (Criminal Trials) Act 1999 (Vic), s 9; and Criminal Code (WA), s 611C(1)(a) and (b).

{14} For example, see Criminal Procedure Act 1986 (NSW), s 150; and Crimes Act 1900 (ACT), s 288.

{15} R Hope, Royal Commission on Australia’s Security and Intelligence Agencies: General Report (1984), [4.21].