classified information procedures act (cipa): an overview

8/14/2019 Classified Information Procedures Act (CIPA): An Overview

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Classified Information Procedures Act (CIPA):An Overview

Lany M. EigLegislative Attorney

American Law Division

March 2, 1989jl l

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TheCongressional Res earch Service works exclusively for th e C ongress, conducting rs-search, analyzin g legislation, and providing information a t th e request of committees,Members, and the ir staffs.The Service makes such research available, without partisan bias, in many formsincluding studies, reports, compilations, digests, and background briefings. Up onrequest, CRS ssists committees i n analyzing legislative proposals an d issues, a nd inassessing th e possible effects of these proposals and their alternatives. T he Service'ssenior specialists and subject analysts are also available for personal consultations intheir respective fieIds of expertise.


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TEIE CLASSIFED INFORMATION PROCEDURES ACT (CIPA): AN OVERVIEWSUMMARY

When a violation of criminal law potentially implicates sensitive nationa lsecurity concerm, the Executive Branch may face a dilemma of eitherdeclining to prosecute a violation of law or risking disclosure of sensitivematerial8 during a criminal trial. Prio r to 1980 i t was particularly difficultto assess whethe r a successful prosecution could proceed without jeopardizingdieclmure of sensitive information because the government had no means ofdetermining t he extent, natu re, or relevance of classified information a t issueprior to its introduction at trial. In 1980, however, Congress enacted theCIamified Information Procedures Act (CIPA) to provide a means fordetermining a t an early stage whether a Hdiscloseor dismissHdilemma existsin a potential prosecution or whether a prosecution may proceed that bothprotects inform ation the Executive regarda a s sensitive to security and as suresthe defendant a fair trial consistent with the mandates of the Constitution.

Among ita core provisions,CIPA nitiates a n early focus on security issuesby requiring a defendant in a criminal case to notify the prosecution and thecourt prior to trial of any classified information that he reasonably expects todisclose in his defense. Also, the notice provision is a continuing one, and adefendant must provide a separate notice of any additional classifiedinformation that he becomes aware of after his initial notice and intends touse. A defendant may no t introduce any cIassified information tha t was notincluded in a CIPA notice.

Issues on the use, relevance, and admissibiIity of classified informationth a t eith er was included in a notice by th e defendant or is expected to be usedby the prosecution are considered by the court in pretrial hearings. Undercurrent case law, the court to some degree may take national securityinterests into account in determining admissibility, If a court finds thatcertain classified information is admissible into evidence, the court then mayconsider a request by the government to substitute summaries or redacteddocuments in lieu of original documents, Th e court may authorize asubstitution in such a case only when a substitution affords a defendantsubstantially the same opportunity to defend himself as introduction of theoriginal documents would, Once a court makes its findings on whatinformation must, in fairnesa to the defendant, be introduced, the AttorneyGeneral may file an objection to disclosure on nationa l security grounds, an dth e prosecution therea fter mu st be partially or completely dismissed.The courts generally have upheld CIPA to constitutional challenge andhave enforced the sanctions set forth in the statute in appropriate cases.However, th e judge in th e Iran-Co ntra prosecutions has ruled th a t CIPAprocedures must give way when they risk excessive exposure of the

defendant's case, Thie ruling furthers a frequently made observation thatCIPA ie most effective in resolving potentially troublesome cases in w hich th eclassified information at risk proves to be only marginally sensitive ormarginally relevant, It remaine problematic whether the disclose or dismimdilemma posed by a prosecution involving sensitive information a t its core canbe resolved in a manner that preserves the rights of the defendant,


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CMSSIFlED BYFORltiATION PROCEDURES ACT (CBPA): AN OVERVIEW

The Executive Branc h of our Government has th e auth ority to prosecuteviolations of federal criminal law.' Th e Ekecutive Branch also takes measuresto protect information in its possession relating to national security and toprevent ita disclosure? When a violation of criminal law potentially implicatessensitive nationa l security concerns, the Executive thu s m ay face a dilemmaof either declining to prosecute a violation of law or risking disclosure ofsensitive materials d uring a criminal triales Prio r to 1980 it was particularlydifficult to assem whether a successful prosecution could proceed withoutjeopardizing disclosure of sensitive information because the government hadno means of determining the extent, nature, or relevance of classifiedinformation at issue prior to its introduction at trial, In 1980, however,Congress enacted th e Classified Information Procedures Act (CIPA)' in ordert o provide a discrete a nd orderly framework for determining a t an early stagewhether a "disclose or dismiss" dilemma exists in a potential prosecution orwhether a prosecution may proceed that both protects information theExecutive regards as sensitive to security and assures the defendant a fairtrial consistent with the mandates of the Constitution.I. LEGISLATIVE HISTORY OF CIPA

During the 1970's the number of prosecutions in which the actual orprospective disclosure of classified information became an issue substantiallyincreased and wae expected to increase further," The term "graymail" cameinto use to refer "to actions of a criminal defendant in seeking access to,revealing, or threatening to reveal classified information in connection withh is de f e n~ e . " ~he problems that arose during this period from the inabilityto resolve issues relating to classified information prior to tr ial w as describedby Assistant Attorney General Philip Heymann as follows:

US, ONST,rt. 2, 5 3, c1. 3 (President to take care that the laws befaithfully executed),Exec, Order No. 12356, 47 Fed, Reg. 14874, 15657 (1982).Criminal defendants enjoy a constitutional righ t to a public trial, U S .CONST,mend, VI,Pub. L, o. 96-456, codified at 18U.S.C. App, 1 ' .E.g., H.R. ep, No. 96-831, 96th Cong., 2d Sess. 7 (1980); see alsoG m p d l Legislation: Hearings Befort! the Subcommittee on L egislation of the

House Pemnent Select Committee on Intelligence, 96th Cong,, 1 st Sees, 4-5(1979) statemen t of Assistant Attorney G eneral Ph ilip Heymann).H. R, ep, No. 96-831 at 7.


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To fully understand the problem, it is necessary toexamine the decision making process in criminal casesinvolving classified information. Under present procedures,decisions regarding the relevance and admissibility ofevidence are normally made as they arise du ring the courseof th e trial. In advance of trial, the government often mustguess whether the defendant will seek to disclose certainclassified information and speculate whether it will befound admissible if objected to a t trial. In addition, ther eis some que stion whether material will be disclosed a t tr ialand the damage inflicted before a ruling on the use of theinformation can be obtained. Th e situation is furth ercomplicated in cases where the government expects todisclose some classified i t e m i n prese nting its case.Without a procedure for pre-trial rulings on the disclosureof classified information, the deck is stacked againstproceeding with these cases because all of the sensitiveitems that might be disclosed at trial must be weighed inassessing wh ether th e prosecution is sufficiently importa ntto incur the national security risks.

In the past, the government has foregone prosecution ofconduct it believed to violate criminal laws in order toavoid compromising nation al security information. Th ecosts of such decisions go beyond the failure to redressparticula r instances of illegal conduct. Such determinationsfoster th e perception th a t government officials and p rivatepersons with access to m ilitary o r technological secrets havea broad de facto immunity from prosecution for a varietyof crimes. This perception no t only undermines thepublic's confidence in the fair administration of criminaljustice but it also promotes concern that there is noeffective check agains t improper conduct by members of ourin te l l igence agen~ies .~Mr. Heymann's remarks were made in hearings on unauthorizeddisclosure of classified information conducted by a panel of the HouseIntelligence Committee in Ja nu ary 1979. Du ring th e previous year, asubcom mittee of t he Sen ate Select Committee on Intelligence had completedan extensive stu dy of national security information and t he administration of

- - - -- - -Gmymuil Legislation: Hearings Before the Subcommittee on Legislationofth e House P e m n e n t Select Committee on Intelligence,96t h Cong., 1 st Sess.

4-6 (1979) (statem ent of Assistant Attorney General Philip H eyrnann).


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justice.'' In ita subsequent rep ort of it s study, the subcommittee prefaced it sdetailed digcussion and recommendations with the following observations onthe difficulty of prosecuting national security cases:The subcommittee discovered that enforcement of lawsintended to protect national security information oftenrequires disclosure of the very information the laws seekto protect. Indeed, th e more sensitive th e informationcompromised, the more difficult it becomes to enforce th elaws th a t guard our national security. At times then,regardless of whether the compromise is to a newspaperreporter or directly to a foreign agent, the Governmentoften m us t choose between disclosing classified informationin a prosecution or letting the conduct go unpunished, Inthe worde of one Justice Department official who testifiedbefore the subcommittee, T o what ex tent must we harmthe national security in order to protect the national

s e ~ u r i t y ? " ~Subse quent discussion in the report fu rther highlighted t he conflicts th a toften exist within th e Executive branch:

A t th e he art of this failure of enforcement is a very deep-seated conflict between the concerns of the intelligencecommunity on th e one hand, and th e Department of Justiceon the o ther in enforcing the espionage statutes, Theconflict arises over whether publicly to disclose classifiedinformation necessary to conduct the investigation and toproceed with the prosecution. Indeed th is question ofwhether or which classified information is to be used in aparticular judicial proceeding is a pervasive problem thatgoes well beyond enforcement of the espionage statute^.'^

In light of the intrabranch conflict th at it perceived to inhere in nation alsecurity cases, many of the subcommittee's recommendations focused onactions within th e Executive Branch, Among these recommendations were (1)development of administrative procedures for disciplining employees

STAFFF THE SUBCOMMITTEEN SECREXYND DISCU);SUREF THE SENATEELECT~ M M I ~N ~TELWGENCE, 5 ~ ~N G . , ~SE!SS,,NATIONALECURITYECRETS ND THEADMIHISTRATIONF JUSTICEComm. Pr in t 1978) fiereinafter cited as Senate Pr int] ,Among the proceedings held during the study was The Use of ClassifidZnforrnution in Litigation: Hearings Befom the Subcommitteeon Secrecy andDisclosuw of the Senate Select Committee on Intelligence, 95 th Cong,, 2d Sess,(1978).Senate Print a t 1,

lo Id. a t 6,


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responsible for violations of security o r oth er laws, (2) issuance of guidelinesby the Attorney General regarding the responsibility of the intelligencecommunity to report crimes, and (3) issuance of binding regulations by theAttorney General setting forth procedures for the provision by intelligenceagencies of information relevant to criminal proceedings.ll Oth errecommendations of the subcommittee focused on suggestions forcongressional legislation. Pe rha ps foremost among these recommendationswere con sideration of a special omnibus pretrial proceeding to be used in caseswhere national secrets were likely to arise.12

In Ju ly 1979, th re e bills were introduced proposing procedures similar tothose discussed in the report of the Senate subcommittee. These bills wereH.R. 4736, the House Intelligence Committee bill; H.R. 4745, theAdministration bill; and S. 1482, th e Senate Judiciary Comm ittee bill. TheHouse bills were referred to both the House Intelligence Committee and theHouse Judiciary Com mittee. The Subcomm ittee on Legislation of the H ouseIntelligence Committee held hearings on the two House bills in August andSeptem ber of 1979.13 Usin g H.R. 4736 as its vehicle, th e H ouse IntelligenceCommittee favorably reported a classified information procedures bill March18, 1980." The Subcommittee on Civil and Constitutional Rights of theHouse Judiciary Committee held further hearings on H.R. 4736 in April andMay of 1980.16 On September 17, 1980, the Judiciary Committee alsoreported H.R. 4736 favorably with an amendment requiring that reports onprosecutions implicating national security and on the operation of thelegislation be submitted to both the Intelligence and the Judiciarycommittee^.'^ The bill subsequently passed the House by voice voteSeptember 22, 1980, without further amendment as its version of S. 1482."In the Senate, S. 1482 had been referred to the Senate Judiciary Committeeand reported to the full Senate June 18, 1980.18 Th e bill passed th e Sena te

l1 Id . a t 31, 32.l2 Id . a t 32.l3 Gmy mail Legislation: Hearings Before the Subcomm ittee onLegislation of the House Permanent Select Committee on Intelligence, 96thCong., 1st Sess. (1979).l4 H.R. Rep. No. 96-831, Part 1, 96th Cong., 2d Sess. (1980).l6 Use of Classified Information in Federal Criminal Cases: HearingsBefore the Subcommittee on Civil and Constitutional Rights of HouseCommittee on the Judiciary, 9.6th Cong. 2d Sess. (1980).l6 H.R. Rep. No. 96-831, Part 2, 96th Cong., 2d Sess. (1980).l7 126h.EZ. H9311 (daily ed. September 22, 1980).l8 S. Rep. No. 96-823, 96th Cong., 2d Sess. (1980).


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by voice vote withou t fu rth er am endment J un e 26.19 While th e versions of S,1482 that were passed by the respective Houses were substantially similar,several differences between them remained to be resolved at conference,Among these differences were the reach of the Act (ae reflected in thedefinition of th e type of information that would trigger the pretrial procedureproceca), the sequence of various preeentations during the pretrial hearing,and the standard for allowing presentation of evidence at trial in analternative form, The conference resolved these issues by adopting thebroader Senate version of protected information, a hybrid two-stage hearingprocedure, an d th e more restrictive House sta nda rd for allowing disclosure ofalternative evidenceaMII, PROCEDURESFOR ASSESSING CLASSIFIED INFORMATION

CIPA was enacted October 15, 1980, as Public Law 96-456,21 Theprocedures that it sets forth for early resolution of security issues begin withthe right of either party or the court to call at any time after indictment fora prompt pretrial conference on m atters relating to classified information th atmay arise during the course of the p ro se ~ ut io n . ~ ~mong the mattersaddressed a t a pretria l conference under CIPA are th e tim ing of discovery, th eprovision by the defendant of the notice of intent to disclose classifiedinformation required elsewhere in CIPA, and the initiation of hearings todetermine what classified information may be presented a t trial.* Th e cou rtalso may consider othe r matters relating to t he conduct of the trial d uring thepretrial conferencesu An admission-made by the defense during a pretrialconference may n ot be used ag ainst the defendant unless i t is in w riting andsigned.=

With respect to discovery, CIPA allows the U nited S tate s to make an expa& showing to the court seeking to limit the disclosure of classifiedinformation to th e defendant during th e course of discovery under th e Federal-- - - -- -'' 126 CONG,REC.S8195 (daily ed. June 25, 1980).HIR.Rep. No. 96-1436, 96 th Cong., 2d S ess. (1980).94 Sta t. 2025, 18 U,S.C. App. W.CIPA, 2,

23 Id .Id .

26 Id ,


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C R S SRules of Criminal Procedurenm Upon a sufficient showing, the court mayauthorize the government to delete specified items of classified informationfrom documents to be made available to the defendant, to substitute asum ma ry of information in classified documents for th e documents themselves,o r to substitute a statement admitting relevant facts that the classifiedinformation being sought would tend to prove.a7

The courts have upheld the examination of documents ex parte duringdiscovery under CIPA to constitutional challenge,28 Furthe rmo re, th e courtsalso have recognized a qualified governmental privilege to withhold certainmaterial during discovery in CIPA cases that is similar in scope to theprivilege to withhold a n informant's identity recognized by the Supreme Courtin Rovario v. U nited SWS . ~n CIPA cases, the government may withholdclassified information during discovery without an adverse effect on itsprosecution unless the defendant can show th at disclosure of th e informationbeing sought not only is relevant, but also is central to the defense or isessential to a fair determination of th e casenMMoreover, it should be recalledthat even when classified information is held to be discoverable afte r applyinga Rovario-type balancing test, a court, upon a proper ex parte showing, stillmay order the release of the information sought in an alternative form."Nonetheless, courts will disallow substitution for the original informationsought where it finds the proposed substitution to be inadequate to protectthe defendant's interests.32

One major innovation of CIPA is to require the defendant to provideformal wri tten notice to th e government and th e cou rt of an i nte nt to disclose

CIPA, 0 4.Id.

26 United Sms v. Jolliff, 548 F. Supp. 229, 231-232 (D.Md. 1981).The Federal Rules of Criminal Procedure also provide for ex parteexaminations. FED. R. C m . P. 6(d)(l). Nonetheless, ex parte discoveryproceedings still are criticized, particularly with respect to determining in w hatform otherwise discoverable evidence wilI be presented to a defendant. E.g.,Tamanaha, A Critical Review of the Classitied Information Procedures Act, 1 3Am. J. Cr. L. 277, 306-315 (1986) Bereinafter T a m n a h a l.

29 353 U.S. 63 (1957).See, e.g., United States v. Pringle, 751 F.2d 419 (1st Cir. 1984). Seealso United State s v. S arkis sian , 84 1 F.2d 959, 965 (9th Cir. 1988).

32 E.g., United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984).


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classified i n f ~ r m a t i o n . ~ nder this requirement, if a defendant reasonablyexpects to disclose or cause the disclosure of classified information in anymanner in connection with trial or pretrial proceedings, the defendant mustgive notice to the court and the government within a period of time specifiedby th e cou rt or, where no time is specified, within thirty days prior to trial,"A notice of an intent to disclose must include a brief description of theinformation a t issue, Th e notice requirement ie a continuing one, andwhenever the defendant learns of additional classified material that he mayreasonably expect to introduce, he must provide additional notice to thegovernment and the court, Once notice is given, the defendant may notdisclose information known or believed to be classified until a hearing on itsuse ha s been held and an appeal, if any, has been completed. Th e court mayprohibit the defendant from disclosing during criminal proceedings anyclassified information no t included in a notice and may prohibit th e defendantfrom examining any witness w ith respect to th at information. On the otherhand, because giving prior notice may put the defendant at an unfairdisadvantage, the government must provide the defendant the information itexpects to use to rebut the classified information in the notice whenever acou rt determines th at th e classified information in th e notice may be discloseddu rin g criminal proceedings. Failure by the government to provide rebutta linformation may result in sanctions on the government similar to those thatmay be imposed upon a defendant for failure to give notice.

Various mpecta of the notice requirement have been litigated before theUnited States district courts and courts of appeals,= During the course ofthis litigation, the courta a t times have imposed sanctions on defendants whofailed to provide adequate notice and denied them opportunity to pursuecertain issues a t trial, Courts imposing sanctions have characterizeddefendant's pretrial notice as "the central document in CIPA,"= explainingthat "without sufficient notice that sets forth with specificity the classified

E,g., U S. v. Badia, 827 F.2d 1458 ( l l t h Cir. 1987) (defendant's failure,despite government warning, to provide particularized notice of intent todisclose classified information held to preclude raising certain m atters a t trialeven though the government may have had reason to believe th at defendantintended to assert a defense implicating security matters); United Shtes v.Wilson, 760 F.2d 7 (2d Cir. 1984) (notification requirement upheld toconstitutional challenge based on fifth amendment); United S ht ee v. Collins,720 F.2d 1195 (llth Cir. 1983) (defendant's notice held to be too general tocomply with CIPAJs requirem ent of a particularized notice se ttin g forthspecifically th e classified information t h at may be disclosed); Unifed States v.Jollifi 648 F,Supp. 229 (D. d, 1981) (notification requirement upheld toconstitutional challenge).

SB United States v. Collins, 720 F.2d at 1199,


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information that the defendant reasonably believes necessary to his defense,the government is unable to weigh the costa of, or consider alternatives to,d i s c l o ~ u r e . " ~ ~urtherm ore, t he courta have upheld th e notice requirement toconstitutional challenge.38 The Supreme Court itself does not appear to haveaddressed the CIPA notice provision.sg It recently has, however, upheld aState Supreme Co urt rule th a t precluded the introduction of certain testimonybecause defendant had failed to comply with a pretrial disclosurereq~irement . '~

A pretrial notification by the defendant of an intent to introduceclassified material would appear to be th e primary means of alerting the courtand other parties to a prospective classified information issue at trial.Presum ably, classified information isaues also could arise in oth er ways. Fo rexample, matters possibly could arise during trial that implicate sensitiveinformation t h a t could no t have reasonably been foreseen prior to trial to bea t issue. Also, issues relative to the government's use of classifiedinformation in its case may remain to be resolved in a judicial context. Th ismay be so even though in many national security prosecutions anyintra bran ch conflict over what materials may be revealed durin g a public trialconsistent w ith secu rity intere sts presumably is resolved prior t o a decision bythe Department of Justice to seek an indictment. For example, a decision onwhether to go forward with a prosecution may depend upon a ruling by thecourt on whether certain information may be introduced in alternative form.In oth er situations--prosecutions after appointment of a n independent counselunder th e Tit le VI of th e Et hic s in Government Act of 1978," for example--circumstances may m ilitate ag ainst full resolution of security issues within th eExecutive Branch prior to bringing formal charges.

- - -United States v. Budiu, 827 F.2d at 1465. See also United Sta tes v.Collins, 720 F.2d a t 1199-1200 (requiring defenda nt to sta te with particularitywhich item s he reasonably expects to disclose in his defense).See United States v. Wilson, 750 F.2d a t 9 a nd cases cited the rein.

sg E.g., 479 U.S. 839 (1986) deny ing cert. to United States v . Wilson, 750F.2d 7 (2d Cir. 1984).'O Taylor v. Illinois, - .S. , 108 S.Ct. 646 (1988) (defendant'sconstitutional right to present testimony in h is own behalf held no t to p reventabsolutely a rule that bars testimony for failure to comply with pretrialdisclosure rule when weighty countervailing public in terests a re a t stake)." 28 U.S.C. 00 591 et seq.


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Regardless of how classified information issues arise, however, CIPA setsforth a hearing procedure for resolving them.12 The hearing procedureprovided, conducted at an early stage and outside of trial, determinesseparately (1) whether the classified information sought to be used isadmissible and therefore should be disclosed48 and, (2) if disclosure ofparticular information is authorized, in wha t form i t may be introducedu. A ninitial hearing on classified information may be requested by the governmentwithin a period specified by the court.'6 At issue at th e hearing are "alldeterminations concerning the use, relevance, or admissibility of classifiedinformation that would otherwise be made during the trial or pretrialp r o ~ e e d i n g , " ~ ~oth the government and the defendant may participate in ahearing, even though the hearing is conducted in camem upon certificationby th e Attorney General." Th e government mu st notify th e defendant as towhat material is to be considered at the hearing." This notification maydescribe the material by generic category only if the material has notpreviously been made available to th e defendant?'When t he government's request for a hearing is filed prior t o a particu larpretrial proceeding or trial, the court must rule prior to the commencementof fur the r proceedings," The cou rt mu st state in writing the basis of itsdetermination concerning the use, relevance, or admissibility of each item ofclassified inf0rmation.6~A finding th a t classified information may b e disclosedmay trigger the altern ative disclosure procedures. If the court determinesthat epecific claseified information may be disclosed, the government maymove that the court, in lieu of disclosure, order the substitution of astatement admitting relevant facts or of a summary of the i n f o r m a t i ~ n . ~ ~hecourt is required to authorize substitution upon finding, after a furtherhearing, that a statement or summary will provide the defendant "with

a CIPA, S 6,43 CIPA, 4 6(a). -

CIPA, 6(c).46 CIPA, 9 6(a).48 Id.47 Id.

CIPA, 8 6(b).Id,CIPA, 6(a).

61 Id.6a CIPA, 6(c).


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substantially t he same ability to make h is defense as w ould disclosure of thespecif ic classif ied inf~rmation."~ In connection with the motion forsubstitution, th e government may submit an H id av it by the Attorney Generalexplaining th e basis for th e classification of the information a t issue and th atdisclosure of the information would cause identifiable damage to the nationals e ~ u r i t y . ~ n affidavit filed by the Attorney General may be examined expa*."

The court must order a defendant not to disclose otherwise admissibleclassified information whenever a substitution motion by the government isdenied and the Attorney General files an additional affidavit with the courtstill objecting to th e disclosure of th e classified information a t issue." Insuch a n event, th e court mu st dismiss the prosecution unless the court findsth a t dismissal would no t serve th e intereste of justice and .orders otherappropriate action in lieu of dismis~al!~ Further appropriate action mayinclude, but need not be limited to, dismissing specified counts only, findingagainst the government on issues to which the undisclosed informationpertains, or striking or precluding specified testimony.@ An order dismissinga prosecution in whole or par t or man dating other app ropriate action may nottake effect until after the government has had an opportunity to appeal theorder and, if the appeal is unsuccessful, to withdraw its objection tod i s c l o ~ u r e . ~ ~he go vernm ent may appeal a decision auth orizin g disclosure orimposing sanctions for nondisclosure irnmediatel~.~~uch an interlocutoryappeal must be considered by the court of appeals on an expedited basise61

Much of the litigation on the "use, relevance, and admissibility" stage ofCIPA hearings has addressed the appropriate scope of inquiry a t th at point.More particularly, litigante have questioned whether the governm ent's intere stin protecting classified information may be take n into account in determiningwhat evidence may be admitted into evidence at all or whether that interestmay be taken into account only when determining what alternative form, ifany, otherwise adm issible information may be introduced. Th e lead case in

6s Id.CIPA, 4 6(c)(2).

66 Id.

CIPA, 9 6(e)(l).67 CIPA, 9 6(e)(2)." Id.6Q Id.

CIF'A,97.=l Id.


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th e are a is United States v. Smith.62 Smith, a former Army employee chargedwith eelling certain material to the Soviet Union, sought to introduceclassified information to support his defense that he had believed he wasparticipating in a CIA double agent operation when transferred the materiala t iseue. Th e district court and a panel of the court of appeals ruled thatsome of the information Smith sought to introduce was admissible because itwa relevant evidence under the Federal Rules of Criminal ProcedurePssAccording to them decisions, the government's interest in protecting classifiedinformation in the hands of the defendant is pertinent in CIPA he ar in g onlya t th e stage of determining whether otherwise relevant information may beintroduced in an alternative form. The court of appeals ruling en barndisagreedeM It rather held th at a Rouario-type balancing tes t was ap propriatenot onIy during discovery in classified information cases, but also duringrelevance, use, and admissibility hearingsea This ruling thu s allows th egovernment to use national security interesta to preclude th e introduction ofsome classified information altogether, rat he r tha n be restricted to using thoseconcerns only for the purpose of substituting alternative evidence.Nonetheless, even under this ruling, the defendant may be authorized tointroduce classified material upon a showing that the material is "essential"or "necessary to the defense" and not "merely cumu1ative"nor " s p e ~ u la t i v e . ~The en barn ruling in Smith has been followed in later cases,"'

There does not appear to be much reported litigation on the substitutionprocedures that follow a finding that classified information is relevant andadmissible. However, even though th e government may make a morecomplete and ex pa& representation to the court at that stage on thesensitivity of the material a t issue, it .may be difficult to convince a c ourt t ha tevidence already found during the first stage of hearings to be central to th edefendant's case nevertheleaa must be admitted only in a substituted form,Again, C P A only permits a substitution to be made if it will leave thedefendant with "substantially the same ability to m ake his d e f e n ~ e . " ~t least

United States v, Smith, 780 F,2d 1102 (4th Cir, 1984) (ruling 7-5 enbane); United States v. Smith, 750 F.2d 1215 (4th Cir. 1984); United Statesv. Smith, 692 F. Supp. 424 (E.D. Va. 1984).United States u, Smith, 750 F,2d 1215 (4th Cir, 1984); United Sfute8v. Smith, 692 F. Supp. 424 (E.D. Va. 1984).

a United Statea u, Sm ith, 780 F,2d 1102 (4th Cir, 1984) (ruling 7-6 enbarn).

* See 780 F,2d a t 1110." E.g,, United S tates v. Zettl, 835 F.2d 1059 (4th Cir, 1987).


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one court has held that introduction of edited documents would be unfair tothe defendant because of their diminished effect.BBE.h IPA PROVIBIONS

In addition to the notification and hearing procedures for determiningadmissibility, CIPA sets forth separate standards governing the introductionof classified inform ation int o evidence. Fo r example, CIPA sta tes th a t a cou rtmay order that only part of a classified document or a redacted version of aclassified document be introduced if admission of a complete document isunnecessary and coneideration of an incomplete document is not unfair?OFurthermore, the government may object to any question or line of inquirythat may require the witness to disclose claseified information not previouslyfound to be admissible. Following a n objection by th e government, th e courtis to determine whether a prospective response may be admitted withoutcompromising classified inf~rmation.~' lso, in an espionage or similar caserequiring the government to prove that material relates to the nationaldefense or constitutes classified information, CIPA requires the governmentto notify the defendant of the specific material it expects to rely upon toestablish the national security element of the offense so that the defendantmay have adequate time to prepare a defen~e.7~

W o provisions of CIPA require other branches of government to adoptprocedures rela ting to classified and the courts. Firs t, CIPA directs th e ChiefJustice of the United States, in consultation with the Attorney General, theDirector of Central Intelligence, and the Secretary of Defense, to prescriberules establishing procedures for the protection of classified information i n thecustody of th e federal courts?s Chief Jus tice Burger complied with th isdirective and issued security procedures Feb ruary 12, 1981.7' Second, CIPAdirects th e A ttorney General to issue guidelines specifying the factors to beused by th e D epartment of Justice in deciding whether to undertake a

69 United States v. Clegg, 846 F.2d 1221, 1224 (9th C ir. 1988).70 CIPA, 9 8(b).'' Presumably these provisions primarily are intended to supplement th enotice and hearing requirements that apply when a defendant has a

reasonab le expectation th a t classified information m ay be disclosed. In otherwords, the provisions appear primarily intended to cover those situationswhere the defendant does not have a reasonable expectation that classifiedinformation is implicated and does not realize th a t an answer to his inquiriesmay be classified.CIPA, 9 10.

78 CIPA, 0 9.74 CIPA, 8 9 note.


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prosecution in which classified information may be r e~ ea l ed . 7 ~ hird, CIPAfurth er requires the Justice Department to prepare detailed written findingswhenever it declines to prosecute a case pursuant to t h e g ~ i d e l i n e s ? ~Decisions not to prosecute under th e guidelines also mu st, "c]onsistent withapplicable authorities and duties, including those conferred by th eConstitution upon the executive and legislative branches," be reported by theJustice Department to the respective Intelligence Committees and JudiciaryCommitteee?'III, CRITICISM AND RECENT DEVEZOPMENTS: RULINGS INTHE TRIAL OF LT. COL. OLIVER NORTEI

In their discuseions of CIPA, courta and commentators have remarkedthat the Act is not intended to make substantive changes regardingdefendants' rights and th e use of classified in f~ rm a ti o n ? ~ ather, accordingto these authorities, CIPA is intended only to put in place procedural rulesthat facilitate early rulings on the admissibility of classified informationalleged to be a t issue a nd on t he acceptability of substitutions for evidencefound to be bo th sensitive and admissible?O At times, however, the proceduralscheme set forth in CIPA itself may be seen as adversely affecting adefendant's rights, particularly where the defense expects to introduce a largeamount of relevant classified information.

Ord ers of District Judg e Gesell issued in th e course of proceedings arisin gfrom the Iran-Contra affair illustrate how close adherence to CIPA may beseen ae compromising a defendant.* Th e focus of th e Iran-Contra affair areallegations that certain individuals secretly applied funds, including fundsgenerated by a classified government effort to free Americans held in theMiddle Eaet, to various unauthorized purposes through deceiving Congress,obstructing investigations, and other unlawful means! Of the fourindividuals indicted so far through the Independent Counsel appointed toinvestigate these events, most of the CIPA litigation has concerned the

76 CIPA, 9 12(a),

* CIPA, 13.

Eg. , United States v , Sm ith, 780 F.2d a t 1106 (majority opinion), 1112(dissent); Tamamha, sup m n,28, at 294.Id.

b0 United Stubs v . Poindexter, 698 F.Supp. 316 (D.D.C. 1988); Unite&States v. NoHh, 698 F. Supp. 323 (D.D.C. 1988).'' 698 F. S u p p , a t 302,


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prosecution of Lieute nan t Colonel Oliver North. After observing th at "themost sensitive information and most critical national security intelligencemethods a nd sources available to th e government" appeared to be "inextricablyenmeshed in the events challenged by the indictment [of Lt. Col. North],"Judg e Gesell stated th e following regarding th e application of CIPA:It will be impossible to conduct this case under theprecise strictures of CPA, not only because of this broadintrusion into classified areas of information but alsobecause it is impossible in advance to determine andc o ~ ~ e c t l yule on all issues of relevance, materiality andadmissibility. It probably was never contemplated thatclassified informa tion problems of this m agnitude would bepresented to a trial judge in a cam. . . .Dn enacting CIPA Congress] emphasized tha t th e C ourtshould not undertake to balance the national securityinterests of the government against the rights of thedefendant but rather that in the end remedies andsanctions aga inst th e government mu st be designed to maketh e defendant whole again. Thu s while a limitedopportunity for creative judicial adjustment of CIPAprocedures exists, in the end, defendant's constitutionalrights must control.

. . . Counsel for North has urged that strict applicationof CIPA will force North to reveal to the government wellin advance his strategy, his evidence, and, indeed, evenaspects of his defense. . . . This, it is argued withconsiderable force, will place North at a practical andtactical disadvantage, infringing upon his constitutionalrights under the Fifth and Sixth Amendments. . . . TheCourt has determined that many of these concerns canhopefully be avoided by applying pretrial proceduresconsistent with th e congressional inten t u nderlying CIPA.A way mu st be found to preserve defendant's constitutionalrights that still affords adequate protection for nationalsecurity concerns!aJudge Gesell thu s saw his task not as applying CIPA, which he believedwould infringe upon the rights of Lt. Col. North, but rather as trying to a tleast preserve t he spirit of CIPA by fashioning procedures th at were tailoredto th e needa of th e case before him. The procedure subsequently outlined by

--82 698 F. Supp. at 319, 320, 321.


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Jud ge GeselI largely followed th e notice provisions in CIPA bu t differed fromCIPA in t h e diminished role given to the prosecution and, to a lesser degree,the court during pretrial review of material intended to be used by thedefense. Rather than determining use and relevance issues a t hearings whereth e prosecution was to be present, as is the case under CIPA, Judge Gesell setout a procedure under which the court and the defense alone were to meetconcerning th e use and relevance of i t e m contained in th e notice given bythe defense. At these ex prte meetings, the judge was to actively explorewith defense counsel possible substitutions for the classified informationsought to be introduced, After the court, without divulging defem e strategy,then ruled on the relevance and materiality of the remaining classifieddocumente contained in the defense's notice, the court was to notify theinteragency h k f o r c e th at was determining which documents could be releasedfor th e purpose of having these remaining documents reviewed, Only th encould the prosecuting Independent Counsel become actively involved inexamining mater ials in t he defense's case, and th is participation was limitedto seeking substitutions for documents found by the taskforce to be toosensitive for full disclosure, Beyond reviewing classified documents containedin the defense's notice, Judge Gesell refused to consider in advance thesubjects to be covered in th e defense's opening state ment or in th e testimonyof th e defense witnesses, including th e defendant's. Judge Gesell also gavethe defense broad rights to discover information redacted in documentsintended to be used by t h e p r o s e c ~ t i o n , ~IV. CONCLUSION

In rul ing that CIPA procedures must give way when they risk excessiveexposure of the defendant's case, Judge Gesell highlights the limited efficacyof CIPA in highly sensitive cases. Judge Gesell's opinion suggests th a t themore a defendant relies on sensitive information, the more difficult it is tofashion procedures for resolving security iseues, Furthe rmo re, CIPA never hasbeen seen as aseuring th a t all security issues could be resolved. Ra ther CIPAis most effective as a meam for resolving potentially troublesome cases inwhich t he classified information a t risk proves to be only marginally relevantor marginally sensitive. It remains problematic whether the disclose ordismisa dilemma posed by a prosecution involving sensitive information at itscore can be resolved in a manner that preserves the rights of the defendant.

d7/4Larry M. EigLegislative &meyAmerican Law -Division698 F. Supp. at 321-322.

classified information procedures act (cipa): an overview

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