The handling and disclosure of sensitive intelligence

Closed material procedures and constitutional change in the ‘Five Eyes’ nations

Authored by: David Jenkins

Routledge Handbook of Law and Terrorism

Print publication date:  July  2015
Online publication date:  July  2015

Print ISBN: 9780415870375
eBook ISBN: 9780203795835
Adobe ISBN: 9781134455096

10.4324/9780203795835.ch18

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Abstract

In the post-9/11 period, closed material procedures (CMPs) for the handling and disclosure of sensitive intelligence as evidence in legal proceedings have proliferated throughout Australia, Canada, New Zealand, the UK, and the US – the so-called ‘Five Eyes’ nations comprising the world’s closest international, intelligence-sharing network. 1 In the UK and Australia especially, CMPs have become prominent, permanent fixtures of those legal systems; they can no longer be dismissed as temporary, but lingering, emergency counter-terrorism measures or procedural aberrations having limited scope. Accordingly, CMPs have by now become ripe for closer study of their wider, long-term effects upon their host legal systems. This chapter is a preliminary, working stage of just such an anticipated study. For this purpose, it broadly defines CMPs as secretive legal proceedings used to protect national-security-sensitive material, relied upon by the state as evidence when adjudicating individual rights, while restricting both a person’s access to that evidence and representation by legal counsel. Due to reasons of space, however, the chapter’s focus will be limited to those CMPs affecting personal liberty or used in the civil and criminal courts. 2

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