The handling and disclosure of sensitive intelligence: closed material procedures and constitutional change in the "Five Eyes" nations. – University of Copenhagen

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15 September 2015

The handling and disclosure of sensitive intelligence: closed material procedures and constitutional change in the "Five Eyes" nations.

This chapter, in the new Routledge Handbook of Law and Terrorism, critically examines the use of secret evidence in legal proceedings throughout the “Five Eyes” nations: the US, UK, Canada, Australia, and New Zealand. These common-law countries not only comprise the closest international intelligence community in the world, but share a tradition of due process of law, whereby evidence in all legal proceedings must be public. However, in response to the threat of terrorism, that legal principle has been increasingly compromised in these jurisdictions by the spread of “closed material procedures,” whereby courts may rely upon a government’s secret evidence in cases involving terrorism or other national security concerns. This chapter explains the patterns by which this has occurred. It argues that, in those countries where closed material procedures have significantly displaced open justice, they possibly herald a normative shift in domestic constitutional values from liberty to national security and, consequently, a constitutional rift between the Five Eyes nations themselves.

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