The ability to use secret evidence in trials involving national security matters is an extremely controversial power of the government lawyer. Although the use of secret evidence was a divisive issue before September 11, 2001, the terrorist attacks that day sparked the passage of new legislation that increased the power of the government lawyer to use classified evidence. By examining the cases involving secret evidence both before and after September 11, in particular the case of Zacarias Moussaoui, it becomes apparent that what is at stake is the appropriate balance between national security concerns and the constitutional rights of defendants. Current legislation gives prosecutors significant authority in determining whether and how secret evidence will be used and in what forum; it is crucial that government lawyers use this power with integrity. Only by appropriately balancing defendants' rights and national security concerns can justice be done in cases involving threats to national security.
Tracy L. Conn, Use of Secret Evidence by Government Lawyers: Balancing Defendants' Rights with National Security Concerns, 52 Clev. St. L. Rev. 571 (2004-2005)