Independent UN rights expert warns Israeli orders may breach Geneva Convention

Two orders by the Israeli military relating to movement in the occupied Palestinian territory (oPt) may breach the fourth Geneva Convention and violate the International Covenant on Civil and Political Rights (ICCPR), an independent United Nations human rights expert said.

“The orders appear to enable Israel to detain, prosecute, imprison and/or deport any and all persons present in the West Bank,” said Richard Falk, UN Special Rapporteur on the situation of human rights in the occupied Palestinian territory.

Mr. Falk said his concern was based on Israel’s new definition of the term ‘infiltrator.’ The term is defined as “a person who entered the Area unlawfully following the effective date, or a person who is present in the Area and does not lawfully hold a permit.”

“Even if this open-ended definition is not used to imprison or deport vast numbers of people, it causes unacceptable distress,” the UN independent expert said in a statement, noting that “it is not at all clear what permit, if any, will satisfy this order.”

Mr. Falk said that “a wide range of violations of international human rights and international humanitarian law could be linked to actions carried out by the Government of Israel under these orders, with particular gravity in the event that young persons become victims of their application.”

He added: “Illustrative of the potential for cruel abuse is a provision of the order requiring the person deported to pay the costs of his or her deportation, and suffer confiscations of property if unable to pay.”

Mr. Falk warned that deportations under the two new orders could take place without judicial review, and that detained persons can be imprisoned for seven years, unless they are able to prove that their entry was lawful, in which case they would be imprisoned for three years.

The special rapporteur recalled that Israel is party to the fourth Geneva Convention, which outlines its obligations as the Occupying Power in the West Bank. Article 49 of the Convention states that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

Mr. Falk also noted that, despite the fact that Israel is party to the ICCPR, “the orders establish a system that allows Israel to deport people without having their right to judicial review properly fulfilled, or possibly not reviewed at all.”

He stressed that “the orders do not even ensure that detainees will be informed in their own language that a deportation order has been issued against them.”

The independent expert, who is mandated by the UN Human Rights Council to monitor the situation of human rights and international humanitarian law in Palestinian territories occupied since 1967, also expressed his serious concern on “whether a military committee, as the one established by one of the orders, is the kind of mechanism appropriate to satisfy requirements of judicial review, in the case that detained persons are not deported before having their situation reviewed.”

Bin Laden threatens US over alleged 9/11 plotter

Osama bin Laden threatened in a new message (click here for full text) released Thursday 25 March to kill any Americans al-Qaida captures if the U.S. executes the self-professed mastermind of the Sept. 11 attacks or other al-Qaida suspects.

In the 74-second audiotape aired on Al-Jazeera television, the al-Qaida leader explicitly mentions Khalid Sheik Mohammed, who was captured in Pakistan in 2003. He is the most senior al-Qaida operative in U.S. custody and is currently detained at the U.S. naval base at Guantanamo Bay, Cuba.

In 2008, the U.S. charged Mohammed with murder and war crimes in connection with the Sept. 11, 2001 attacks on the U.S. Pentagon officials have said they will seek the death penalty for him. Four of his fellow plotters are also in custody.

“The White House has expressed its desire to execute them. The day America makes that decision will be the day it has issued a death sentence for any one of you that is taken captive,” Bin Laden said, addressing Americans.

After his March 2003 capture in Pakistan, Mohammed described himself as the architect of numerous terrorism plots and even claimed that “with my blessed right hand,” he had decapitated Wall Street Journal reporter Daniel Pearl. Pearl was found beheaded in Pakistan in 2002.

Mohammed, appearing in June 2008 for the first time since his capture five years earlier, said he would welcome becoming a “martyr” after a judge warned him that he faces the death penalty for his confessed role as mastermind of the Sept. 11 attacks.

The U.S. is still considering whether to put Mohammed and the four fellow plotters on military tribunal. The Obama administration is also looking into recommendations for civilian trials, and is expected to announce a decision soon.

Bin Laden also said President Barack Obama is following in the footsteps of his predecessor George W. Bush by escalating the war in Afghanistan, being “unjust” to al-Qaida prisoners and supporting Israel in its occupation of Palestinian land.

“The politicians of the White House were and still are wronging us, especially by supporting Israel and occupying our land in Palestine. They think that America, behind oceans, is safe from the wrath of the oppressed, until the reaction was loud and strong in your homeland,” he said of the Sept. 11 attacks. “Equal treatment is only fair. War is a back-and-forth.”

The prospect of giving Mohammed and the four fellow plotters a civilian trial in New York City has led to protests by residents and relatives of Sept. 11 victims who fear that such a move could again make the city a terrorism target and that they should instead face a military trial.

Scott Horton on lawfare

Quote:

The concept of “lawfare” appears to be a one-size-fits-all cover for this strategy: in the view of the conference organizers, any human-rights organization that criticizes the government’s security policies is an adversary. To the extent that it engages courts and the law, it is “lawfare.” The next step will apparently be to try to dry up the funding that supports this sort of work, by pressing donors directly and tarnishing the reputations of the NGOs that receive their grants. Recent reports inside Israel surrounding the New Israel Fund show how this tactic can be pursued; Israeli commentators are busy attacking NGOs who take money from the European Union as a “European lobby.” NGOs that cooperated with the Goldstone inquiry and whose representatives testified before it have been specially singled out.

The notion of “lawfare” was previously used to attack lawyers in the United States who filed habeas petitions on behalf of alleged terrorists in Guantánamo. These lawyers were and continue to be subjected to McCarthyite character assassination as terrorist sympathizers, even though about 80% of their clients have turned out not to be terrorists after all. Lawfare turns out to be a flexible concept, available for a wide array of situations in which a government finds itself at odds with the law, fighting a rear-guard action in its own courts, or menaced by the prospect of prosecutions overseas.

Efraim Chalamish, the U.N. Representative of the Association of Jewish Lawyers, pointed to Asia as an interesting case study for those looking at the lawfare concept. Indeed, Pervez Musharraf, the one-time Pakistani dictator, zealously embraced the idea of lawfare. In a speech on November 3, 2007, he declared a state of emergency in Pakistan. In his televised address (turning to the camera and switching from Urdu to English, moreover), he argued that his government had been hamstrung in the conduct of the war against terror by lawyers who were flooding the courts with writs challenging the government’s detention of alleged terrorists. He declared a state of emergency and suspended the country’s constitution. It soon appeared that Musharraf’s real adversaries were more the lawyers than the terrorists. He placed the Supreme Court under house arrest and proceeded to round up the leaders of the bar. In the struggle between Musharraf and the bar, however, Musharraf lost. And with the lawfare dictator gone from the scene, and the judges and lawyers back filing their writs and petitions, the war against terror in Pakistan seems to have gained its second wind. This Asian example provides a good demonstration of how the lawfare concept is wielded and what role it really plays in the war against terror.

Targeted killings, surveillance and drone attacks after the Dubai assassination plot and the Al Awlaki controversy

NewAmerica study on the use of drones in Pakistan between 2004 and 2010

The study shows that the 114 reported drone strikes in northwest Pakistan, including 18 in 2010, from 2004 to the present have killed approximately between 834 and 1,216 individuals, of whom around 549 to 849 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 according to this analysis is approximately 32 percent.

The NYtmes reports that drones are also playing a more important role in Afghanistan, which is illustrated by at least 14 drone strikes near Marja in the first half of February. Trying to bring down civilian deaths, Gen. Stanley A. McChrystal, the commander of the American-led forces in Afghanistan, has tightened the rules for airstrikes, especially by military jets, which usually drop larger bombs than the drones and have less time to follow the targets.

General McChrystal recently told Congress that the intelligence from the drones and other planes was “extraordinarily effective” in dealing with the broad mix of demands.

Military officials said the Special Forces were using the drones to attack Taliban leaders and bomb-making networks in eastern and southern Afghanistan, often by stacking two or three drones over a compound to track everyone who came and went. Much of that data was analyzed in the United States, where the drone pilots are stationed. But ground commanders also receive the video feeds on special laptops.

Controversy about targeted killings of US civilians with drones
A front-page story in the Washington Post on January 27 included the remarkable statement that

“Both the CIA and the JSOC [Joint Special Operations Command of the Department of Defense] maintain lists of individuals… whom they seek to kill or capture. The JSOC list includes three Americans, including [Islamist cleric Anwar al-] Awlaki, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.”

But at least the part about the CIA list turns out to be unfounded. As Secrecy News notes:

“The article referred incorrectly to the presence of U.S. citizens on a CIA list of people the agency seeks to kill or capture,” the Washington Post said in a correction published in the February 12 edition.  “After The Post’s report was published, a source said that a statement the source made about the CIA list was misunderstood. Additional reporting produced no independent confirmation of the original report, and a CIA spokesman said that The Post’s account of the list was incorrect. The military’s Joint Special Operations Command maintains a target list that includes several Americans. In recent weeks, U.S. officials have said that the government is prepared to kill U.S. citizens who are believed to be involved in terrorist activities that threaten Americans.”

However, on February 3, Director of National Intelligence Dennis C. Blair testified to his view that U.S. government agencies may use lethal force against U.S. citizens who are involved in terrorist activities. While Blair did not specifically discuss Awlaki, the cleric survived one such airstrike in December.

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission.

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Glenn Greenwald argues that this is clearly a violation of US law.

However in subsequent interviews with Newsweek’s Mark Hosenball, anonymous current and former U.S. national-security officials revealed that no such special procedure need occur if a strike does not specifically target an American citizen, even if an American dies in the process, raising questions about whether the administration sought to evade the constitutional prohibition on summarily killing Awlaki that his citizenship entitles him to receive. In any case, the president himself does not have to sign off on kill orders – making plausible deniability all the more possible.

The ACLU said the following:

“It is alarming to hear that the Obama administration is asserting that the president can authorize the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified ‘threat.’ This is the most recent consequence of a troublingly overbroad interpretation of Congress’s 2001 Authorization for the Use of Military Force. This sweeping interpretation envisions a war that knows no borders or definable time limits and targets an enemy that the government has refused to define in public. This policy is particularly troubling since it targets U.S. citizens, who retain their constitutional right to due process even when abroad.”

Over at OJ, Kenneth Anderson argues that the Obama administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. More here and here.

Roger Cohen at the NYTimes brings back memories of the Letelier assassination in Washington to put things more in perspective. He adds:

The drone strikes are concentrated on Pakistan, with which America is not at war. The Obama administration has declined to say anything about this doctrine of targeted killing. It’s not clear how you get on a list to be eliminated; who makes that call; whether the decision is based on past acts (revenge, say, for the killing of C.I.A. agents in Khost, Afghanistan) or only on corroborated intelligence demonstrating that the target is planning a terrorist attack; what, if any, the battlefield limits are; and what, if any, is the basis in law.

Others see other dangers that come with the use of drones.

Peter Singer reminds the readers of Newsweek that at least 40 other countries—from Belarus and Georgia to India, Pakistan, and Russia—have begun to build, buy, and deploy unmanned aerial vehicles.

Just as we once failed to imagine terrorists using our own commercial aircraft against us, we are now underestimating the threat posed by this new wave of technology. We must prepare for a world in which foreign robotics rivals our own, and terrorists can deliver deadly explosives not just by suicide bomber but also by unmanned machine.

The ease and affordability of such technology, much of which is already available for purchase commercially, means that drones will inevitably pass into the wrong hands, allowing small groups and even individuals to wield power once limited to the world’s great militaries.

As one robotics expert told me, for less than $50,000 “a few amateurs could shut down Manhattan.”

Israel’s air force has recently introduced a fleet of large unmanned planes that it says can fly as far as Iran.

The NSJ argues that drones raise unique security issues as their data streams, and possibly control streams, must be secured.

U.S. drone vulnerability stems from the fact that once a drone is far from its base, satellite uplinks are necessary to link the drone to the base.  Such uplinks are vulnerable to hacking, unless the data stream is encrypted.  But the drones’ data stream is unencrypted, and unless significant expenditures are made to add encryption to the proprietary satellite technology, the vulnerability will remain.  The unencrypted data stream vulnerability carries over to other U.S. satellite traffic, as a 2005 CIA report describes.  While the control data stream of drones is encrypted, the ability of enemies to access U.S. drone intelligence seriously undermines the ability of the United States to use that intelligence for mission purposes.

U.S. drone vulnerabilities have been known to the U.S. military since at least the 1999 Yugoslav war.  Whether it was bureaucratic indifference or inertia, the problem was not addressed.  Most worrying, U.S. commanders may have seriously underestimated the ingenuity and technical proficiency of militants.  If this is so, it must be hoped that the same commanders will not continue to underestimate the threat to drone data-gathering and control posed by a lack of data stream security.  Only by addressing this security hole can the ever-growing drone force be considered a fully functional weapon of war, useful in all possible conflicts and with a varied mission profile.

Is surveillance complicating targeted killings?
Although the Dubai police say those involved in Mabhouh’s killing were careful to use encrypted communications and to avoid leaving traces of their real identities behind, the global use of advanced investigative technologies, is enough to gravely complicate the creation of “covers” meant to allow assassins to slip unnoticed past national authorities, according to several former U.S. covert operations officers in The Washington Post.

“It is getting harder and harder in a pervasive surveillance society,” partly because of biometric technologies that include computer-driven matching and comparisons of facial structures, said one former official. But, he added, “for every technical barrier, there is going to be some technical solution. There might be a lag time” before new countermeasures are adopted, but even now “there are other ways to go about it . . . without sending in 11 to do a job like this.”

Ubiserv comment here.

More academic reading

Gregor Noll (Lund Univ. – Law) has posted Sacrificial Violence and Targeting in International Humanitarian Law. The paper also sheds some light on some of the issues raised above.

The LA Times has a string of opinions on targeted killings as well, focussing more on the alleged killing of Hamas leader Mabhouh by the Mossad, including by Philip Alston and Amos Guiora. See also this piece in the WSJ.

Alan Dershowitz analysis of the legal issues rising out of the alleged Israeli assassinations of a Hamas leader in Dubai here.

Hezbollah chief issues warning to Lebanon ‘spies’

Hezbollah chief Hassan Nasrallah warned the Lebanese government on Monday 1 March against sharing telecommunications information with the United States, saying any such move would be tantamount to collaborating with the Israeli enemy.

The Shiite militant leader also called for any Lebanese citizens convicted of spying for the Jewish state in a series of trials in recent months to be hanged.

“The US embassy is sending letters to ministries and security forces asking for information,” Nasrallah said via video link to his supporters massed in Hezbollah’s stronghold in Beirut’s southern suburbs.

“This is dangerous as it is a violation of Lebanon’s sovereignty, but its real danger lies elsewhere,” he said.

“Because of the strategic relationship and unity between the United States and Israel … any information gathered through such requests, like spy rings, reaches Israelis.

“In other words, it is giving Israel information by proxy on a silver platter, and we hope there are no Lebanese citizens collaborating with the US embassy in the matter,” he said.

A US request for confidential data on Lebanon’s telecommunications sector prompted an emergency meeting of Lebanese MPs and top officials on Monday, after local media accused Washington of spying.

The request by the US embassy in Lebanon was submitted in April last year but was turned down by then-energy minister Gebran Bassil, reports said.

Bassil on Monday confirmed to AFP that he had turned down the embassy’s request for “very detailed information on the mobile phone service providers in Lebanon — the stations, the antennas, technical information.” US embassy officials would not comment.

Nasrallah also demanded the death penalty for convicted spies as Lebanese authorities press on with an expanding crackdown on suspected Israeli spy rings launched last year.

Turkey update

1. Wiretapping of jurists ruled out

It was reported that on December 29, 2009, Turkey’s Council of State has ruled against a law that would have permitted the Justice Ministry to wiretap judges and prosecutors. The decision of the Council was unanimous and applied to article 98 of the regulation that establishes the responsibilities and methodology of the Turkish Justice Ministry’s Supervisory Board. The decision stated that wiretaps for the collection of information could only be authorized for criminal investigations or if permitted specifically by law.2. Al Qaeda suspects detained in Turkey

Turkish police launched a nationwide crackdown on suspected militants linked to the al-Qaida terror network on Friday 22 January 2010, rounding up 120 people in simultaneous pre-dawn raids. It was not clear if these raids in 16 provinces would amount to a major blow to homegrown Islamic militants.

Turkey, NATO’s sole Muslim member, took over the rotating command of the NATO peacekeeping operation in Kabul in November and doubled its number of troops to around 1,750. Turkey has also said it is ready to serve as an exit route for U.S. troops’ withdrawal from Iraq.

Friday’s crackdown follows another raid on suspected militants in the cities Ankara and Adana last week in which police rounded up and interrogated some 40 people and reportedly seized documents detailing al-Qaida activities. Twenty-five of them were charged with membership in a terrorist organization while the rest were released.

Those detained Friday’s raids include a faculty member of the Yuzunci Yil University in the eastern city of Van, who is suspected of recruiting students at the campus and other people through the Internet and of sending them to Afghanistan for training.

3. OSCE criticizes Turkey’s internet law

Miklos Haraszti, the OSCE Representative on Freedom of the Media, asked the Turkish authorities to bring Turkey’s internet law in line with OSCE commitments and other international standards on freedom of expression.

“In its current form, Law 5651, commonly known as the Internet Law of Turkey, not only limits freedom of expression, but severely restricts the citizens’ right to access information,” said Haraszti, commenting on a new report commissioned by his office on the blocking measures provided by the law.

4. Israeli agencies see Turkey “moving toward radicalization
Turkey’s recent diplomatic moves are indicative of its shift away from the West and toward radical Islam, Israel’s chief intelligence official said. In his address to the Knesset’s Foreign Affairs and Defense Committee, Israeli military intelligence Maj. Gen. Amos Yadlin linked the change in direction with the one-time allies’ deteriorating relationship.

Yadlin also highlighted Ankara’s growing relationship with Damascus as a sign that Turkey and Israel were moving further apart. Turkey recently lifted mutual visa requirements with Syria and signed a series of cooperation agreements.

5. Erdogan reacts to Sledghammer

Prime Minister Recep Tayyip Erdoğan  commented to an alleged military coup plot that was uncovered last week. The “Sledgehammer Security Operation Plan” led to a nationwide outcry because it included detailed plans to trigger chaos in the country with the ultimate goal of a military takeover.

According to the plan, the military was to systematically foment disorder in society through violent acts, among which were planned bomb attacks on the Fatih and Beyazıt mosques in İstanbul.

The General Staff denounced the allegations, claiming that the plan was a “scenario against external threats.” Erdoğan complained that some circles had remained under suspicion in the wake of assassinations of some intellectuals in the country; however, the real masterminds behind those murders were emerging now.

Stressing the importance of receiving the support of all segments of society, particularly the support of the opposition parties in this regard, Erdoğan said he was unable to understand why some parties act as advocates of illegal groups.

He was referring to the main opposition Republican People’s Party (CHP), whose leader Deniz Baykal declared that he was an advocate of Ergenekon. Dozens of Ergenekon suspects are being tried in a court in İstanbul’s Silivri district over charges of being members of a terrorist organization.

UN experts conclude major study into use of secret detention in the fight against terrorism

Despite the fact that international law clearly prohibits secret detention, the practice is widespread and “reinvigorated” by the so-called global war on terror, several independent United Nations experts stated, outlining a series of steps aimed at curbing this human rights violation. In a 222-page study which will be presented to the United Nations Human Rights Council in March, the experts conclude that: “If resorted to in a widespread or systematic manner, secret detention might reach the threshold of a crime against humanity.” Read the unedited advance version here.

The study, which took almost a year to complete, involves responses from 44 States to a detailed questionnaire, as well as interviews with 30 individuals – or their family members or their legal counsel – who were victims of secret detention, and in many cases may also have been subjected to torture.

It provides an historical overview of the use of secret detention, noting that it is not a new phenomenon in the context of counter-terrorism. From the Nazi regime to the former USSR with its Gulag system of forced labour camps, States have often resorted to secret detention to silence opposition, according to the report.

The study goes on to address the use of secret detention in the context of the ‘global war on terror’ following the events of 11 September 2001, describing “the progressive and determined elaboration of a comprehensive and coordinated system of secret detention” of persons suspected of terrorism, involving not only United States authorities, but also other States in almost all regions of the world. The study says, inter alia,

143.Given the prevailing secrecy regarding the CIA’s rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the amount of detainees who have been held at the request of other States such as the United Kingdom and Canada.While several of these allegations cannot be backed up by other sources, the Experts wish to underscore that the consistency of many of the detailed allegations provided separately by the detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

It also highlights that secret detention in connection with counter-terrorism policies remains a serious problem on a global scale, either through the use of secret detention facilities; through declarations of a state of emergency, which allow prolonged secret detention; or through forms of “administrative detention,” which also allow prolonged secret detention.

The study was issued by the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin; Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention (represented by its Vice-Chairperson, Shaheen Sardar Ali); and the Working Group on Enforced or Involuntary Disappearances (represented by its Chairperson, Jeremy Sarkin).

Israel: Law on Biometric Methods and Data Preservation

On December 7, 2009, the Knesset, Israel’s parliament, passed the Law on the Inclusion of Biometric Methods and Data in Identification Documents and in a Data Bank, 6570-2009. The Law establishes rules for the issuance of identification cards and travel documents that will include biometric, digitally identifiable photographs of a person’s face and of two fingers. The Law establishes a data bank for the preservation of biometric identification at the Ministry of the Interior. More info here.

Israel: Biometric Databank Proposal

On November 17, 2009, the special Knesset (Israel’s parliament) committee for evaluating the subject of a biometric database convened at the Prime Minister’s office and decided to postpone voting on a bill to implement a biometric system for two years. According to the bill, electronic identification cards would replace the current paper ones and include two fingerprints and a digital photograph for each Israeli citizen. Opponents of the bill raised privacy concerns and argued that although similar databanks exist in other countries, they are limited to data on offenders, tourists, and visitors and do not contain data retrieved from all citizens as a mandatory requirement.

According to a compromise reached in the committee, a pilot program will enable any Israeli who requests an identity card or a passport to join the biometric bank. This will be an option; those who do not wish to provide such data can obtain regular certificates. The objective of the pilot program seems to be to examine the level of security of the databank and the public’s willingness to voluntarily provide fingerprints.

Article: Secret Evidence and the Due Process of Terrorist Detentions

Barak-Erez, Daphne and Waxman, Matthew C., Secret Evidence and the Due Process of Terrorist Detentions (November 19, 2009). Columbia Journal of Transnational Law, Vol. 48, No. 003, 2009; Columbia Public Law Research Paper No. 09-218. Available at SSRN: http://ssrn.com/abstract=1511858

Abstract:    
Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush.