This paper claims that the current procedure for trying espionage-related crimes is inadequate. Specifically, this paper argues that the Confidential Information Procedures Act fails to remedy the issues of confidentiality and national security that arise in civilian courts. For that reason, the United States should create specialized court-martial-style courts to try cases of espionage. In this specialized court-martial system, defendants would have access to confidential information crucial to their defense while also allowing the government to protect matters of national security. This would significantly decrease the likelihood of disclosure of confidential governmental information to the public. First, this paper describes the three major styles of courts the United States currently uses: civilian courts, courts-martial, and military tribunals. It also explains why each particular venue is not suited to try cases regarding espionage-related crimes, including the need for transparency in civilian courts and why the United States cannot truly consider military tribunals to pursue these crimes. Second, the paper describes Congress’ past attempts to remedy the problems detailed in the first section. Specifically, it details the Confidential Information Procedures Act, along with the accompanying silent-witness rule. Section two of the paper further details the flaws of this Act, including how defendants have successfully circumvented that Act in order to force the government’s hand. The paper will use Oliver North, of Iran-Contra fame, and Thomas Andrews Drake as specific examples of the defendant’s ability to “graymail” the government into either reducing or completely dropping espionage charges. Third, the paper demonstrates how the United States should tailor the current court-martial system to make it an effective tool for prosecuting all espionage related crimes. Specifically, it details how the United States could create a special court that deals only with espionage-related crimes. There would be no immediate public access in the specialized court-martial; rather, the public would have access to the redacted record after the end of the proceedings. While defendants do have a right to a public trial, all courts have generally made exceptions in the past for certain types of crimes and cases. The United States should simply add espionage-related crimes to the list of those already sequestered from the public. By allowing the public access to a redacted record after the proceedings, the public still gets to enjoy a certain level of transparency. While the public would not get to see the classified documents or read confidential testimony, it would be aware that the court-martial tried the defendant for espionage-related crimes. Further, all non-confidential information would remain open to the public. Therefore, the specialized court-martial would be the most effective and secure way to try espionage-related cases without completely sacrificing the public’s right to know about the proceedings.
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