After a criminal indictment becomes public, the prosecutor remains responsible for taking reasonable precautions against the unauthorized disclosure of classified information during the case. This responsibility applies both when the government intends to use classified information in its case-in-chief as well as when the defendant seeks to use classified information in his/her defense. The tool with which the proper protection of classified information may be ensured in indicted cases is the Classified Information Procedures Act (CIPA). See Title 18, U.S.C. App III.
CIPA is a procedural statute; it neither adds to nor detracts from the substantive rights of the defendant or the discoery obligations of the government. Rather, the procedure for making these determinations is different in that it balances the right of a criminal defendant with the right of the sovereign to know in advance of a potential threat from a criminal prosecution to its national security. See, e.g., United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983); United States v. Lopez-Lima, 738 F. Supp. 1404, 1407 (S.D.Fla. 1990). Each of CIPA's provisions is designed to achieve those dual goals: preventing unnecessary or inadvertent disclosures of classified information and advising the government of the national security "cost" of going forward.Subsection (b) defines "national security" to mean the "national defense and foreign relations of the United States."
Section 2 provides that "[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution." Following such a motion, the district court "shall promptly hold a pretrial conference to establish the timing of requests for discovery, the provision of notice required by Section 5 of this Act, and the initiation of the procedure established by Section 6 (to determine the use, relevance, or admissibility of classified information) of this Act."
Of critical importance in any criminal case, once there exists any likelihood that classified information may be at issue, is the entering of a protective order by the district court. CIPA Section 3 requires the court, upon the request of the government, to issue an order "to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case." The government's motion for a protective order is an excellent opportunity to begin educating the Court, including the judge's staff, about CIPA and related issues. It is essential that the motion include a memorandum of law that provides the court with an overview on national security matters and sets forth the authority by which the government may protect matters of national security, including the general authority of the Intelligence Community (IC) pursuant to the National Security Act of 1947, the Central Intelligence Act of 1949, and various Executive orders issued by the President. For sample motions and protective orders or to discuss any problems you may have with the court on CIPA issues, please contact the ISS. The protective order must be sufficiently comprehensive to ensure that access to classified information is restricted to cleared persons and to provide for adequate procedures and facilities for proper handling and protection of classified information during the pre-trial litigation and trial of the case.
The requirement of security clearances does not extend to the judge or to the defendant (who would likely be ineligible, anyway). Some defense counsel may wish to resist this requirement by seeking an exemption by order of the court. The prosecutor should advise defense counsel that, because of the stringent restrictions imposed by federal regulations, statutes, and Executive Orders upon the disclosure of classified information, such tack may prevent, and will certainly delay, access to classified information. In any case in which this issue arises, the prosecutor should notify the Internal Security Section immediately.
An essential provision of a protective order is the appointment by the court of a Court Security Officer (CSO). The CSO is an employee of the Department's Justice Management Division; however, the court's appointment of a CSO makes that person an officer of the court. In that capacity, the CSO is responsible for assisting both parties and the court staff in obtaining security clearances (not required for the judge); in the proper handling and storage of classified information, and in operating the special communication equipment that must be used in dealing with classified information.
Section 4 provides in pertinent part that "[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting the relevant facts that classified information would tend to prove." Like Rule 16(d)(1) of the Federal Rules of Criminal Procedure, section 4 provides that the Government may demonstrate that the use of such alternatives is warranted in an in camera, ex parte submission to the court.
By the time of the section 4 proceeding, the prosecutor should have completed the government's review of any classified material and have identified any such material that is arguably subject to the government's discovery obligation. Where supported by law, the prosecutor, during the proceeding, should first strive to have the court exclude as much classified information as possible from the government's discovery obligation. Second, to the extent that the court rules that certain classified material is discoverable, the prosecutor should seek the court's approval to utilize the alternative measures described in section 4, i.e., unclassified summaries and/or stipulations. The court's denial of such a request is subject to interlocutory appeal. See Section III.A, infra.
NOTICE OF INTENT TO USE CLASSIFIED INFORMATION
Following the discovery process under section 4, there are three critical pretrial steps in the handling of classified information under sections 5 and 6 of CIPA. First, the defendant must specify in detail, in a written notice, the precise classified information he reasonably expects to disclose. Second, the Court, upon a motion of the Government, shall hold a hearing pursuant to section 6(a) to determine the use, relevance and admissibility of the proposed evidence. Third, following the 6(a) hearing and formal findings of admissibility by the Court, the Government may move to substitute redacted versions of classified documents from the originals or to prepare an admission of certain relevant facts or summaries for classified information that the Court has ruled admissible.PRETRIAL EVIDENTIARY HEARING, SUBSTITUTIONS AND STIPULATIONS
The linchpin of CIPA is section 5(a), which requires a defendant who reasonably intends to disclose (or cause the disclosure of) classified information to provide timely pretrial written notice of his intention to the Court and the Government. Section 5(a) expressly requires that such notice "include a brief description of the classified information," and the leading case under section 5(a) holds that such noticeUnited States v. Collins, 720 F.2d 1195, 1199 (11th Cir. 1983) (emphasis added) See also United States v. Smith, 780 F.2d 1102, 1105 (4th Cir. 1985) (en banc). This requirement applies both to documentary exhibits and to oral testimony, whether it is anticipated to be brought out on direct or on cross-examination. See, e.g., United States v. Collins, supra, (testimony); United States v. Wilson, 750 F.2d 7 (2d Cir. 1984) (same).
If a defendant fails to provide a sufficiently detailed notice far enough in advance of trial to permit the implementation of CIPA procedures, section 5(b) provides for preclusion. See United States v. Badia, 827 F.2d 1458, 1465 (11th Cir. 1987). Similarly, if the defendant attempts to disclose at trial classified information which is not described in his/her section 5(a) notice, preclusion is the appropriate remedy prescribed by section 5(b) of the statute. SeeUnited States v. Smith, supra, 780 F.2d at 1105 ("A defendant is forbidden from disclosing any such information absent the giving of notice").
The purpose of the hearing pursuant to section 6(a) of CIPA is for the court "to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial...." 18 U.S.C. App. III § 6(a). The statute expressly provides that, after a pretrial section 6(a) hearing on the admissibility of evidence, the court shall enter its rulings prior to the commencement of trial. If the Attorney General or his/her designee certifies to the court in a petition that a public proceeding may result in the disclosure of classified information, then the hearing will be held in camera. CIPA does not change the "generally applicable evidentiary rules of admissibility," United States v. Wilson, supra 750 F.2d at 9, but rather alters the timing of rulings as to admissibility to require them to be made before the trial. Accord, United States v. Smith, supra, 780 F.2d at 1106.
At the section 6(a) hearing, the court is to hear the defense proffer and the arguments of counsel, and then rule whether the classified information identified by the defense is relevant under the standards of Fed.R.Evid. 401. United States v. Smith, supra, 780 F.2d at 1106. The court's inquiry does not end there, for under Fed.R.Evid. 402, not all relevant evidence is admissible at trial. The Court therefore must also determine whether the evidence is cumulative, prejudicial, confusing, or misleading," United States v. Wilson, supra, 750 F.2d at 9, so that it should be excluded under Fed.R.Evid. 403.
At the conclusion of the section 6 (a) hearing, the court must state in writing the reasons for its determination as to each item of classified information. 18 U.S.C. App..III section 6(a).
If the court rules any classified information to be admissible, section 6(c) of CIPA permits the Government to propose unclassified "substitutes" for that information. Specifically, the Government may move to substitute either (1) a statement admitting relevant facts that the classified information would tend to prove or (2) a summary of the classified information instead of the classified information itself. 18 U.S.C. App. III section 6(c)(1). See United States v. Smith, supra, 780 F.2d at 1105. In many cases, the government will propose a redacted version of a classified document as a substitution for the original, having deleted only non-relevant classified information. A motion for substitution shall be granted if the "statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specified classified information." 18 U.S.C. App. III section 6(c).
If the district court will not accept a substitution proposed by the government, an interlocutory appeal may lie to the circuit court under CIPA section 7. If the issue is resolved against the government, and classified information is thereby subject to a disclosure order of the court, the AUSA must immediately notify the ISS. Thereafter, the Attorney General may file an affidavit effectively prohibiting the use of the contested classified information. If that is done, the court may impose sanctions against the government, which may include striking all or part of a witness' testimony, resolving an issue of fact against the United States, or dismissing part or all of the indictment. See CIPA section 6(e). The purpose of the relevance hearings under 6(a) and the substitution practice under 6(c), however, is to avoid the necessity for these sanctions.
APPEAL FROM INTERLOCUTORY ORDER
Section 7(a) of the Act provides for an interlocutory appeal by the government from any decision or order of the trial judge authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information. Section 7 appeals must be approved by the Solicitor General. The term "disclosure" within the meaning of section 7 includes both information which the court orders the government to divulge to the defendant or to others as well as information already possessed by the defendant which he or she intends to disclose to unapproved people. Section 7(b) provides that the court of appeals shall give expedited treatment to any interlocutory appeal filed under subsection (a). As a matter of fairness, the policy of the Department shall be that the defense be given notice of the government's appeal under section 7.
Section 8(a) provides that "writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status." This provision simply recognizes that classification is an executive, not a judicial, function. Thus, section 8(a) implicitly allows the classifying agency, upon completion of the trial, to decide whether the information has been so compromised during trial that it could no longer be regarded as classified.
In order to prevent "unnecessary disclosure" of classified information, section 8(b) permits the court to order admission into evidence of only a part of a writing, recording, or photograph. Alternatively, the court may order into evidence the whole writing, recordings, or photograph with excision of all or part of the classified information contained therein. However, the provision does not provide grounds for excluding or excising part of a writing or recorded statement which ought in fairness to be considered contemporaneously with it. Thus, the court may admit into evidence part of a writing, recording, or photograph only when fairness does not require the whole document to be considered.
Section 8(c) provides a procedure to address the problem presented during a pretrial or trial proceeding when the defendant's counsel asks a question or embarks on a line of inquiry that would require the witness to disclose classified information not previously found by the court to be admissible. If the defendant knew that a question or line of inquiry would result in disclosure of classified information, he/she presumably would have given the government notice under section 5 and the provisions of section 6(a) would have been used. Section 8(c) serves, in effect, as a supplement to the hearing provisions of section 6(a) to cope with situations which cannot be handled effectively under that section, e.g., where the defendant does not realize that the answer to a given question will reveal classified information. Upon the government's objection to such a question, the court is required to take suitable action to avoid the improper disclosure of classified information.
Section 9 required the Chief Justice of the United States to prescribe security procedures for the protection of classified information in the custody of Federal courts. On February 12, 1981, Chief Justice Burger promulgated these procedures. For further information regarding those procedures, please contact the Justice Management Division Office of Security, (202) 514-2094.
Although the IC is committed to assisting law enforcement where it is legally proper to do so, it must also remain vigilant in protecting classified national security information from unauthorized disclosure. Just as with law enforcement agencies, the successful functioning of the IC turns in significant part upon the ability of its intelligence officers covertly to obtain information from human sources. In carrying out that task, the intelligence officers must, when necessary, be able to operate anonymously, that is, without their connection to an intelligence agency of the United States being known to the persons with whom they come in contact. For that reason, an intelligence agency is authorized under Executive Order 12958 to classify the true name of an intelligence officer.
During the pre-trial progression of an indicted case, as the court enters its CIPA rulings under sections 4 and 6, it may become apparent to the prosecutor that testimony may be required from an intelligence officer or other agency representative engaged in covert activity, either because the Court has ruled under CIPA that certain evidence is relevant and admissible in the defense case, or because such testimony is necessary in the government's rebuttal. Just as the substance of that testimony, to the extent it is classified and is being offered by the defense, must be the subject of CIPA determinations by the court, the prosecutor must also ensure that the same considerations are afforded to the true names of covert intelligence community personnel, if those true names are classified information. That is, the prosecutor must seek the court's approval, under either CIPA section 4 or section 6, of an alternative method to the witness' testimony in true name that will provide the defendant with the same ability that he would have otherwise had to impeach, or bolster, the credibility of that witness.
In any criminal case in which it becomes likely that an intelligence agency employee will testify, the Assistant United States Attorney (AUSA) assigned to the case shall immediately notify the Internal Security Section (ISS). That office, in consultation with the general counsel at the appropriate intelligence agency, will assist the AUSA during pretrial motion practice and litigation on the issue of whether the witness should testify in true name and other issues related to the testimony of intelligence agency personnel.
[cited in USAM 9-90.240]