I guess some of the uncertainty arises because the immigration security process is not itself a criminal process. While you're quite right that those obligations around disclosure are clearly established in common law with respect to criminal proceedings, when things transfer into an immigration context—and this isn't the only principle where we see this play out—it is not uncommon that it becomes less clear, less certain, whether those conventions and common law principles will or will not be adhered to. That may well be the intention.
As I noted, I think there is a cautionary reminder from the U.K., which has exactly the same well-established—perhaps even longer-established—conventions with respect to disclosure in criminal processes, where this is not how it has played out, and special advocates have frequently indicated.... It's usually happened because they act in more than one case. They'll see information in some other case they're involved in that has been shared with them, for whatever reason, which they've indicated—if it was disclosed to them in the first case or the other case they were involved in—would have been of some relevance, if not even potentially exculpatory, but wasn't disclosed.
I want to be clear that this doesn't solve the problems with the model for us, but we think it's a very important principle, because regardless of whether a special advocate is the one acting or whether the system did get further improved and gave this power to the individual's own lawyer, that person needs to be able to rely on an assurance of full disclosure.