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United States Department of Justice Criminal Resource Manual
(for U.S. Attorneys)
I. DEFINITIONS, PRETRIAL CONFERENCE, PROTECTIVE ORDERS AND DISCOVERY
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.
C. Protective Orders
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.
D. Discovery of Classified Information by Defendant
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.
III. OTHER RELEVANT CIPA PROCEDURES
B. Introduction of Classified Information
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.
D. Public Testimony By Intelligence Officers
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.
CC14. YAROSHEFSKY 6/11/2006 2:44:05 PM
A. Fundamentals of the Adversary System
In Article III courts, we presume that the defendant, through his counsel, has access to incriminating and exculpatory facts, has the opportunity to thoroughly investigate the case, to cross examine witnesses and, if he chooses, to testify on his own behalf and to present witnesses.14 We expect and require the lawyer to mount a zealous defense.15 These fundamental ethical mandates for counsel are called into question in a growing number of criminal prosecutions, notably those that result from the work of intelligence agencies or other government agencies that classify information.16 In such cases, because information that is material and relevant is not readily available to the defense, the defendant is placed at a significant disadvantage in case investigation, preparation, and presentation.
This is primarily the result of two statutes, the Classified Information Procedures Act (“CIPA”) which governs the disclosure of classified information,17 and the Foreign Intelligence Surveillance Act (“FISA”), which addresses procedures for surveillance techniques to gather foreign intelligence information.
CIPA’s purpose is distorted, however, by its use in what is termed “outsider cases,” notably terrorism-related, international drug conspiracies, international defense contractor cases and others implicating foreign relations where the defendant never had and never will have access to the material.22 In this expanding category of cases there is no possibility of “gray-mailing”; the defendant cannot reveal classified information other than that provided in discovery If the government chooses not to disclose the information, the court can impose sanctions such as dismissal of a count or claim.28 The court cannot order the government to declassify the information or require that it be turned over to the defense.29
Only a lawyer who has received a security clearance from the government is entitled to review the classified material.31 The lengthy procedure to obtain such security clearance permits defense lawyers to review documents classified at all levels—top secret, secret, or confidential.32 Counsel’s review of such documents is subject to a protective order that precludes any release of the information—including to the defendant. 33
A second and critical ethical dilemma is that even in cases where classified information is disclosed to defense counsel, she is prohibited from sharing the information with her client who does not have security clearance to review the materials.
FISA initially required the government to certify that the purpose of the surveillance was to obtain foreign intelligence information.71 Legislative history and subsequent case law established that the government had to demonstrate that its “primary purpose” was to gather evidence for foreign intelligence rather than criminal prosecution.72 The 2001 PATRIOT Act expanded the government’s powers under FISA and permits a wide range of surveillance techniques in a broader range of circumstances without a showing of probable cause, so long as a “significant purpose” of the intrusion is to collect foreign intelligence.
III. SECRET EVIDENCE IS SEEPING INTO THE CRIMINAL JUSTICE SYSTEM
The impact of secret evidence upon the adversary system has yet to be acknowledged, in large measure because of the unstated belief that FISA and CIPA are confined to a narrow range of terrorism cases. Secret evidence, however, is likely to have a widespread effect on the federal criminal justice system for at least three reasons. First, the executive branch, notorious for over-classification of documents prior to this administration, has greatly enhanced its classification of documents and is now classifying documents at an unheralded pace.92 Since 2001, it has doubled the number of documents that are classified to fifteen million a year, and has authorized additional governmental offices empowered to classify information.93 Thus, CIPA will be invoked in an expanded number of cases. Moreover, since 2001, FISA warrants have increased dramatically.94
Much of the data about secret evidence is secret and subject to protective orders. There are, for instance, no data on (1) the number or certainly the nature of CIPA proceedings within criminal cases to determine the extent to which classified information with otherwise discoverable information is subject to a balancing test of national security versus materiality and relevancy prior to production to the defense; (2) the number and nature of cases in which the proceedings are all ex parte; (3) the nature of protective orders;110 (4) the use and particulars of summary evidence; or (5) the extent to which sanctions are imposed for the government’s decision not to declassify and produce discoverable material. Few of these issues appear in reported cases.111 Criminal defense lawyers are under protective orders and cannot answer obvious questions to draw conclusions about the systemic effects of the use of FISA and CIPA. Information about secret evidence is secret.112
First, with explicit recognition that the ethical dilemmas created by FISA and CIPA infect every aspect of the attorney-client relationship and should be minimized, there should be a presumption that defense counsel, with appropriate security clearances, will participate in the review of classified information to determine disclosure issues. Rarely has a court included defense counsel in the discovery process.118
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