The September 11 attacks have led to a heightened
emphasis on protecting national security through criminal prosecutions.
These federal criminal cases increasingly involve classified information.
For example, classified information issues may arise in terrorism cases,
espionage cases, export control cases, and even corruption cases. In prosecutions
as varied as those of Oliver North, Robert Hanssen, Wen Ho Lee, and Zacarias
Moussaoui, classified information has played a crucial role.
Cases involving classified information place unique demands on the prosecution,
the defense, and the court. The prosecution must negotiate with the intelligence
agencies that originate the information, craft the charges to reduce the
amount of classified information necessary for the case, and address defense
requests for the information after indictment. The defense must work under
difficult conditions (usually in a secure room at the courthouse). It
must fight even harder than usual to obtain discovery, and it must disclose
far more of its strategy than it normally does if it wants to use classified
information at trial. The court must strike a balance between the government’s
national security interest and the defendant's Fifth and Sixth Amendment
right to present a defense.
Through the Classified Information Procedures Act,1 enacted in 1980,
Congress sought to address these competing interests and to solve the
problem of "graymail"--the threat by a defendant to reveal classified
information in open court without an opportunity for the government to
object. CIPA governs federal criminal cases2 from before indictment through
trial. As the title of the act suggests, Congress intended CIPA to be
purely procedural; the statute contains no substantive standards.
The legislative history of CIPA declares that the defendant "should
not stand in a worse position, because of the fact that classified information
is involved, than he would without this Act."3 Despite this legislative
intent, CIPA imposes extraordinary and largely one-sided disclosure burdens
on the defense--and courts have uniformly rejected constitutional challenges
to these disclosure obligations.4 Also, CIPA imposes substantial practical
constraints on defense counsel, who must do much of their work in a secure
room and who often cannot analyze key documents, interview witnesses,
or even review their own notes in their offices because of rules governing
the handling of classified information.
Although CIPA procedures do not change from case to case, their practical
application depends on the nature of the alleged offense and the extent
of the defendant's prior access to the classified information. "Outsider"
cases--for example, terrorism cases--involve defendants who have never
had access to classified information. The defendant rarely is allowed
to see relevant classified information, and even defense counsel with
the necessary security clearance may receive nothing more than unclassified
summaries of the underlying classified information. "Insider" cases, by
contrast, involve defendants who have had access to classified information
in connection with their work and are charged with job-related offenses.
An example of insider cases are those that were brought against the Iran-Contra
defendants. Both the defendant and defense counsel generally receive access
to almost all relevant classified information. The central battle in insider
cases turns on the defendant's ability to present classified information
in his or her defense at trial.
CIPA and related Department of Justice guidelines impose two principal
preindictment obligations on the government in a case that may implicate
classified information: coordination and evaluation.
First, the DOJ--principally through the Internal Security Section of
the Criminal Division--must coordinate with the intelligence agencies
that originated the classified information. CIPA Section 9A,5 which was
added in the wake of the Wen Ho Lee prosecution, requires DOJ officials
to 1) brief the senior official of the originating intelligence agency
"as soon as practicable after [the DOJ] determine[s] that a prosecution
or potential prosecution could result" and 2) provide further briefings
as necessary "to keep the senior agency official concerned fully and currently
informed of the status of the prosecution."
Second, the DOJ must evaluate whether to proceed with the prosecution
in light of the classified information issues. Under CIPA Section 12,6
the U.S. attorney general must establish "guidelines specifying the factors
to be used by [the DOJ] in rendering a decision whether to prosecute a
violation of Federal law in which, in the judgment of the Attorney General,
there is a possibility that classified information will be revealed."
In 1980, then-Attorney General William French Smith established guidelines
in response to Section 12. The guidelines require the DOJ to weigh the
benefits to the government of prosecuting the case against the potential
harm to national security from the foreseeable disclosure of classified
information at trial.
CIPA has no provisions that regulate the potential defendant's conduct
preindictment. The extent to which the potential defendant and his or
her counsel receive access to classified information preindictment rests
in the government's discretion. In outsider cases, the potential defendant
never receives access to classified information preindictment, and defense
counsel rarely does. In insider cases, by contrast, the government may
grant cleared defense counsel, and sometimes even the potential defendant,
access to classified information to facilitate a resolution of the case.
Postindictment and Prediscovery
Soon after indictment in a case involving classified information, the
parties and the court must take several steps to address the logistics
of handling the information. At the outset, the court enters a protective
order under CIPA Section 3.7 The protective order sets the conditions
under which defense counsel, the defendant, and potential defense witnesses
may review classified discovery, establishes procedures for filing classified
pleadings, and prohibits anyone associated with the defense from revealing
publicly the classified information to which access is granted.8
The protective order also appoints Court Security Officers in accordance
with the security procedures adopted by the U.S. chief justice under CIPA
Section 9(a).9 Although the CSOs work for the DOJ, they are independent
of the prosecution team. They advise the parties and the court on the
proper handling of classified information, and they serve as conduits
for the flow of classified discovery and pleadings among the parties and
The protective order requires defense counsel and other members of the
defense team to obtain security clearances before receiving access to
classified discovery.11 Although the CSOs facilitate the clearance process,
it may take weeks or months to complete. Before counsel receives a clearance,
he or she cannot discuss classified information with the defendant. Especially
in insider cases, the inability to discuss crucial facts early on can
impede counsel's ability to obtain bail, make discovery requests, and
begin to prepare the defense.
In outsider cases, the defendant almost never receives access to classified
information. In insider cases, however, the government generally acquiesces
to the defendant's access to the relevant classified information. This
creates a practical problem, because defendants usually lose their security
clearance at or before indictment, and the government is reluctant to
restore it. The parties generally reach an accommodation allowing the
defendant to review all or most of the classified information produced
in discovery under the restrictions of the protective order. As the court
recently noted in the I. Lewis "Scooter" Libby prosecution, the government
permits such access by the defendant "presumably, in part, because he
previously had access to those [classified] documents as a national security
official and has consented to the various protective orders issued in
The protective order requires the defense to maintain all classified
information in a Sensitive Compartmented Information Facility, or SCIF.
The SCIF consists of one or more secure rooms, usually in the federal
courthouse where the case is being heard. It is protected by locks and
other security devices. The construction of the SCIF can take months,
resulting in further delay. The SCIF contains safes to hold classified
documents, secure computers on which to prepare classified pleadings,
an approved copier, and a shredder. In cases involving large amounts of
classified material--especially insider cases--defense counsel and the
defendant must do the bulk of their work in the SCIF. This creates practical
problems, ranging from obtaining the necessary office supplies to maintaining
defense counsel's involvement in other cases. If defense counsel want
to discuss classified information with potential witnesses, those discussions
generally must occur in the SCIF--and the witnesses must have (or obtain)
a security clearance and sign a memorandum of understanding accepting
the terms of the CIPA protective order.
Once the protective order is in place, defense counsel has the necessary
clearance, and the SCIF is ready, the parties begin the classified discovery
process. CIPA Section 4,13 which governs classified discovery, allows
the court to authorize the government, "upon a sufficient showing," to
delete classified information from the discovery it provides or to furnish
substitutions for the classified information in the form of summaries
or admissions. The statute also provides that "[t]he court may permit
the United States to make a request for such authorization in the form
of a written statement to be inspected by the court alone."
In insider cases, the government generally produces classified discovery
without invoking the ex parte procedure that Section 4 contemplates and
without proposing substitutions.14 In outsider cases, however, the government
typically attempts to convince the court, usually through an ex parte
submission, that unclassified summaries or admissions ensure that the
defendant has substantially the same ability to make his or her defense
as he or she would with the classified information. In some instances,
courts permit the defense to make an ex parte presentation explaining
the relevance of classified information to a potential defense.15
When the government produces classified information in outsider cases,
it seeks to limit the disclosure to cleared defense counsel and to prohibit
the defendant from reviewing the information. Courts have rejected defendants'
contention that disclosure only to counsel violates a defendant's Sixth
Amendment right to counsel.16
CIPA does not impose any heightened burden that the defendant must satisfy
to obtain classified discovery. Some courts, however, have recognized
a qualified "classified information privilege," akin to the government
privilege for informants, which requires the defendant to demonstrate
that the information "may be helpful to [the defendant's] defense."17
Classified information cases frequently present issues concerning the
scope of the prosecution's disclosure obligation. The prosecution typically
seeks to limit its obligation to documents in the possession of the DOJ,
including the FBI. It generally disavows any obligation to produce documents
in the possession of intelligence agencies, such as the CIA and the NSA.
But courts have held that documents are in the possession, custody, or
control of the government (for the purposes of Rule 16 of the Federal
Rules of Criminal Procedure and Brady v. Maryland18) when the agency that
holds the documents participated in the investigation of the defendant,
or when the prosecutor has "knowledge of and access to the documents."19
Applying these principles, the district court in the Libby prosecution
held that the prosecution must produce otherwise discoverable documents
in the possession of the CIA, because the CIA referred the matter to the
DOJ for prosecution and cooperated with the investigation.20
If the court rules against the government under CIPA Section 4 and requires
it to produce the requested classified information, the government may
take an interlocutory appeal under CIPA Section7,21 which authorizes the
government to take an immediate appeal from any order "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."22
The defendant has no corresponding interlocutory appeal right under CIPA.
A defendant's only recourse if he or she is dissatisfied with the court's
CIPA rulings is an appeal following conviction.
The CIPA Notice and Hearing Procedure
CIPA establishes procedures for determining before trial the use, relevance,
and admissibility of classified information that the defense reasonably
expects to disclose.23 The classified information subject to these procedures
includes any classified information that the government produces in discovery
and any such information that the defendant independently knows or possesses.
This process involves four steps.
First, the defense must file a sealed notice pretrial that briefly describes
the classified information that it "reasonably expects to disclose or
to cause the disclosure of" at trial.24 Classified information that the
defense reasonably expects to disclose but does not list on the CIPA Section
5 notice may be precluded from use at trial.25 The CIPA Section 5 notice
may list classified documents (or portions of classified documents) that
the defendant reasonably expects to disclose, and it may also contain
a narrative of classified information that the defendant anticipates revealing
through testimony or in counsel's questions or argument.
The CIPA Section 5 notice compels the defendant to disclose classified
information that will be revealed 1) in the opening statement and closing
argument, 2) by defense counsel's questions or otherwise elicited on cross-examination
of government witnesses at trial, and 3) in the defendant's testimony.
In light of this broad, compelled pretrial disclosure of defense evidence
and strategy, defendants have contended that CIPA violates their Fifth
and Sixth Amendment rights, but courts have rejected these arguments.26
Second, at the prosecution's request, the court must hold an in camera
pretrial hearing under CIPA Section 6(a) at which the court determines
the "use, relevance, or admissibility" of classified information listed
in the defendant's CIPA Section 5 notice.27 The court applies ordinary
evidentiary standards in making these determinations. As the Wen Ho Lee
court observed, "When determining the use, relevance and admissibility
of the proposed evidence [under CIPA Section 6], the court may not take
into account that the evidence is classified; relevance of classified
information in a given case is governed solely by the standards set forth
in the Federal Rules of Evidence."28
At the CIPA Section 6 hearing, the defendant must establish the relevance
of each listed item of classified information. This affords the prosecution
a unique insight into the defense strategy, as defense counsel sets forth
the theory of the defense and ties particular pieces of evidence to that
theory. In no other part of the criminal justice system must the defendant
provide such a complete explanation of the defense before trial without
a reciprocal obligation on the prosecution. As with other aspects of CIPA,
however, courts have found no constitutional defect in the Section 6 procedures.29
Third, as to any classified information that the court finds relevant
and admissible, the government may move to replace the information with
a statement admitting relevant facts that the information would tend to
prove, or to substitute a summary of the information. Under CIPA Section
6(c)(1), the court will grant the government's motion if it finds that
the statement or summary would "provide the defendant with substantially
the same ability to make his defense as would disclosure" of the classified
Courts often find that substitutions meet this standard in outsider
cases, either at the discovery stage under CIPA Section 4 or at the trial
stage under CIPA Section 6(c)(1).31 The classified information in such
cases often has no significant bearing on the disputed issues in the case.
For example, if the government has intercepted the defendant's telephone
conversation through a classified intelligence method, an unclassified
description of the method may suffice for the defendant to move to suppress
the recording pretrial and to challenge its authenticity at trial. The
legislative history of CIPA contains similar examples of acceptable substitutions.
In testimony before the Senate Judiciary Committee, the DOJ posited a
case in which the defendant sought to demonstrate that a government agent
urged him to commit the crime, and the government would be permitted to
admit or summarize the relevant facts without disclosing the agent's name.32
Even in some insider cases substitutions may afford the defendant "substantially
the same ability to make his defense" as would disclosure of the classified
information. For example, Congress noted that if the defendant wishes
to show his or her access to a particular type of classified data, an
admission by the government to that effect, without disclosure of the
underlying data, may suffice.33 In many insider cases, however, the classified
information is too closely woven throughout the case to permit an easy
substitution. Trial courts recoil at the prospect of presenting scripted
direct examinations and cross-examinations to the jury. This problem is
particularly acute for the defendant's testimony. Jurors study defendants
carefully as they testify, searching for any sign of evasiveness. A defendant
who must adhere to a script for significant portions of his or her direct
or cross may well strike the jury as evasive when the defendant is merely
trying to comply with the court's CIPA substitution rulings.
Substitutions in insider cases present the problems that the Supreme
Court identified in rejecting, for most purposes, defense stipulations
in place of the prosecution's proof. The Court declared that "[t]he ‘fair
and legitimate weight' of conventional evidence showing individual thoughts
and acts amounting to a crime reflects the fact that making a case with
testimony and tangible things not only satisfies the formal definition
of an offense, but tells a colorful story with descriptive richness."34
The Court added:
Evidence thus has force beyond any linear scheme of reasoning, and
as its pieces come together a narrative gains momentum, with power not
only to support conclusions but to sustain the willingness of jurors
to draw the inferences, whatever they may be, necessary to reach an
honest verdict. This persuasive power of the concrete and particular
is often essential to the capacity of jurors to satisfy the obligations
that the law places on them.35
Particularly in insider cases, substitutions may deprive the defendant
of the "persuasive power of the concrete and particular" and thus violate
his or her Fifth and Sixth Amendment right to present a defense.
The Fourth Circuit's decision in United States v. Fernandez,36 arising
from the Iran-Contra affair, illustrates the difficulty of devising substitutions
that protect the defendant's right to a fair trial when the defendant
works with classified information and the charges arise from his or her
work. Fernandez--the former CIA station chief in Costa Rica--was charged
with false statements and obstruction arising in part from interviews
he had given to investigators about an airstrip project in Costa Rica.
To establish the truth of his statements (and the absence of obstruction),
Fernandez sought to discuss classified aspects of his work, including
the relationship between the airstrip project and three other projects
with which he was involved. The district court rejected the prosecution's
proposed substitutions, and the Fourth Circuit affirmed.
The court of appeals noted that the substitutions "fell short of informing
the jury about…information about the origin, purpose, and scope of the
three projects."37 It explained:
To address [the charge of lying about the airstrip] requires Fernandez
to paint a concrete and detailed picture of his working environment
as he saw it. We agree with Fernandez's contention that the substitutions
would preclude the defense from "present[ing] a coherent case of its
own, since it would be shackled to a script written by the prosecution."
If the vague, extremely abbreviated descriptions of the projects were
accepted as exclusive substitutes for Fernandez's own testimony about
his role in and understanding of the projects, for classified cables
written by him that corroborated his understanding, and for his direct
and cross-examination of witnesses involved in these projects, Fernandez's
constitutionally guaranteed ability to present a defense would be severely
In other insider cases as well the defendant's need to "paint a concrete
and detailed picture of his working environment as he saw it" may preclude
the use of substitutions for classified information.
Fourth, if the court denies the government's motion for a statement
or substitution, the court will, upon objection by the attorney general,
prohibit the defendant from disclosing the classified information. As
a sanction for the nondisclosure, the court must dismiss the indictment,
with the exception that "when the court determines that the interests
of justice would not be served" by dismissal, the court will take an appropriate
alternative action.39 It may, for example, dismiss "specified counts of
the indictment or information," find "against the United States on any
issue to which the excluded classified information relates," or "strik[e]
or preclud[e] all or part of the testimony of a witness."40 Thus, in Fernandez,
the court dismissed the indictment when the government refused to disclose
the classified information at issue.41 As to any classified information
that the court determines may be disclosed at trial, the court "shall,
unless the interests of fairness do not so require, order the United States
to provide the defendant with the information it expects to use to rebut
the classified information."42 The government may appeal the court's choice
of sanction under CIPA Section 7(a), just as it may appeal most other
adverse rulings involving classified information.
CIPA Section 843 provides the court with several tools for addressing
classified information issues at trial. Section 8(b) permits the court
to admit only unclassified portions of a document, "unless the whole ought
in fairness be considered." Section 8(c) permits the prosecution to object
to any question or line of inquiry that may require a witness to disclose
classified information that has not been found admissible. Upon such an
objection, the court must take appropriate steps to ensure that classified
information is not disclosed. It may, for example, require either the
government or the defense to provide a proffer of the witness's anticipated
CIPA contemplates that the court will resolve most classified information
issues through secret pretrial proceedings under CIPA Section 6. But these
issues may arise unexpectedly at trial when the defense encounters a previously
unforeseen need to disclose classified information. For example, a prosecution
witness may present surprise testimony that requires the use of classified
information on cross-examination or in the defense case. Or the prosecution
may cross-examine the defendant or another defense witness in a manner
that requires the witness to disclose classified information to present
a truthful and complete answer.
Under these circumstances, CIPA Section 5(a) requires the defendant
to "notify the attorney for the United States and the court in writing
as soon as possible" and to include "a brief description of the classified
information."44 The statute prohibits the defense from disclosing the
classified information until it has given the notice, the government has
had a "reasonable opportunity" to seek a CIPA Section 6 hearing, and the
time for the government to appeal an adverse decision by the district
court has expired or the appeal has been resolved.45 Thus, CIPA creates
a significant possibility that trial testimony can be interrupted virtually
midsentence for a sealed CIPA hearing and a potential government appeal.
Particularly in insider cases, the possibility of a classified information
train wreck lurks throughout the trial, requiring the government to tread
carefully in presenting its case and questioning defense witnesses.
While CIPA effectively prevents graymail, the statute solves this problem
at a tremendous price. It imposes cumbersome and time-consuming procedures
on the parties and the court. And it is particularly unfair to the criminal
defendant, who must lay out his or her defense pretrial and whose counsel
must labor in a SCIF under the practical constraints of a CIPA protective
order. Courts have repeatedly upheld the constitutionality of the statute,
however, and it is here to stay. As a broader range of cases implicate
classified information, defense counsel must become familiar with CIPA's
intricacies and insist that courts apply the statute's procedures consistent
with the defendant’s Fifth and Sixth Amendment rights.
Sidebar: Civil Cases and the State Secrets Privilege In criminal cases, the government has no absolute privilege that allows it to deny the defendant access to classified information that is material to the defense. As the Supreme Court declared more than a half-century ago, "[S]ince the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense."1
In civil cases, by contrast, the government may invoke the "state secrets" privilege to deny access to information that, if disclosed, would harm national security.2 When properly invoked--by the head of the agency with responsibility for the information, based on the agency head's personal knowledge--the state secrets privilege is absolute; it cannot be overcome no matter how great the showing of need for the information.3 And if the information at issue goes to the core of the claim or a potential defense, then the court must dismiss the case.4 The government may invoke the privilege in suits between private parties and in suits in which it is the defendant.
The government has invoked the state secrets privilege with increasing frequency in recent years.5 In May 2006, for example, the government obtained the dismissal of a suit brought by Khaled El-Masri alleging violations of his constitutional rights through the CIA extraordinary rendition program. The district court acknowledged that "if El-Masri's allegations are true or essentially true, then all fair-minded people…must…agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy." In light of the state secrets privilege, however, the court concluded that "the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch."6 The government has also invoked the privilege to obtain the dismissal of, for example, 1) Notra Trulock's suit against Wen Ho Lee,7 2) a whistleblower suit against the Department of Justice,8 and 3) an employment discrimination case against the CIA.9
In a rare setback for the government, Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California recently denied the government's motion to dismiss the suit brought against AT&T for its alleged complicity in illegal domestic surveillance by the National Security Agency. Judge Walker concluded that the government and AT&T had disclosed enough information about the program publicly that at least some discovery could proceed without violating the state secrets privilege. The court left open the possibility that the privilege could require dismissal at a later point in the litigation.10--J.D.C. & K.C.M.
Endnotes to Sidebar:
1 United States v. Reynolds, 345 U.S. 1, 12 (1953); see, e.g., Jencks v. United States, 353 U.S. 657, 671 (1957); United States v. Andolschek, 142 F. 2d 503, 506 (2d Cir. 1944).
2 See, e.g., Sterling v. Tenet, 416 F. 3d 338, 346 (4th Cir. 2005), cert. denied, 126 S. Ct. 1052 (2006); Kasza v. Browner, 133 F. 3d 1159, 1165-67 (9th Cir. 1998); Ellsberg v. Mitchell, 709 F. 2d 51, 56 (D.C. Cir. 1983).
3 See, e.g., Kasza, 133 F. 3d at 1166; In re Under Seal, 945 F. 2d 1285, 1288 (4th Cir. 1991); Halkin v. Helms, 690 F. 2d 977, 990 (D.C. Cir. 1982).
4 See, e.g., Sterling, 416 F. 3d at 347-48; Kasza, 133 F. 3d at 1166-67.
5 See The State Secrets Privilege: Selected Case Files, at http://www.fas.org/sgp/jud/statesec/index.html.
6 El-Masri v. Tenet, 2006 U.S. Dist. LEXIS 34577, at *28-*29 (E.D. Va. May 12, 2006).
7 Trulock v. Lee, 66 Fed. Appx. 472 (4th Cir. 2003) (unpublished).
8 Edmonds v. United States Dep't of Justice, 323 F. Supp. 2d 65 (D. D.C. 2004), aff'd mem., 161 Fed. Appx. 6 (D.C. Cir.), cert. denied, 126 S. Ct. 734 (2005).
9 Sterling v. Tenet, 416 F. 3d 338, 347-48 (4th Cir. 2005), cert. denied, 126 S. Ct. 105Civil Cases and the State Secrets Privilege 2 (2006).
10 Hepting v. AT&T Corp., Case No. C 06-0672-VRW, Order (N.D. Cal. July 21, 2006); see Hepting v. AT&T Corp., 2006 U.S. Dist. LEXIS 41160 (N.D. Cal. June 6, 2006).
Endnotes to the Main Text
1 18 U.S.C. app. 3. See generally Ralph V. Seep, Validity and Construction of Classified Information Procedures Act, 103 A.L.R. Fed. 219 (1991 & Cum. Supp.) (summarizing cases interpreting CIPA).
2 CIPA does not apply in federal or state civil cases or in state criminal cases.
3 S. Rep. No. 96-823, at 9, reprinted in 1980 U.S. Code Cong. & Admin. News 4294, 4302; see United States v. Lopez-Lima, 738 F. Supp. 1404, 1407 (S.D. Fla. 1990); United States v. North, 698 F. Supp. 316, 320 (D. D.C. 1988).
4 See, e.g., United States v. Collins, 720 F. 2d 1195, 1200 (11th Cir. 1983); United States v. Bin Laden, 2001 U.S. Dist. LEXIS 719 (S.D. N.Y. Jan. 25, 2001); United States v. Lee, 90 F. Supp. 2d 1324 (D. N.M. 2000); United States v. Ivy, 1993 U.S. Dist. LEXIS 13572 (E.D. Pa. Aug. 12, 1993); United States v. Poindexter, 725 F. Supp. 13 (D. D.C. 1989); United States v. North, 708 F. Supp. 399 (D. D.C. 1989).
5 18 U.S.C. app. 3 §9A.
6 18 U.S.C. app. 3 §12.
7 18 U.S.C. app. 3 §3.
8 The protective order under CIPA §3 applies only to disclosures of classified information in connection with the case. The government must rely on other statutes or on contractual provisions to prohibit the defendant from making extrajudicial disclosures of classified information. See United States v. Pappas, 94 F. 3d 795, 801-02 (2d Cir. 1996).
9 18 U.S.C. app. 3 §9(a). The procedures, issued by Chief Justice Warren Burger in 1981, appear in a note following CIPA §9.
10 See 9 United States Attorney's Manual, Criminal Resource Manual §2054(I)(C) (1997) (describing the role of CSOs).
11 Courts have uniformly rejected the argument that requiring defense counsel to obtain a security clearance violates the defendant's Sixth Amendment right to counsel of choice or counsel's right to privacy. See, e.g., United States v. Al-Arian, 267 F. Supp. 2d 1258, 1266-67 (M.D. Fla. 2003); United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D. N.Y. 1999); cf. United States v. Joliff, 548 F. Supp. 232, 233 (D. Md. 1981); United States v. Smith, 899 F. 2d 564, 570 (6th Cir. 1990).
12 United States v. Libby, 429 F. Supp. 2d 18, 20 n.2 (D. D.C. 2006).
13 18 U.S.C. app. 3 §4.
14 The current prosecution of I. Lewis "Scooter" Libby marks
one of the few insider cases--and perhaps the only one--in which the government
has sought to invoke the substitution and ex parte provisions of CIPA
15 See, e.g., United States v. Clegg, 740 F. 2d 16, 17 (9th Cir. 1984); Libby, 429 F. Supp. 2d at 26; United States v. Poindexter, 727 F. Supp. 1470, 1479 & n.16 (D. D.C. 1989); United States v. North, 698 F. Supp. 322, 324 (D. D.C. 1988).
16 See, e.g., United States v. Bin Laden, 2001 U.S. Dist. LEXIS 719, at *7-*15 (S.D. N.Y. Jan. 25, 2001).
17 United States v. Rezaq, 134 F. 3d 1121, 1142 (D.C. Cir. 1998); see United States v. Yunis, 867 F. 2d 617, 623 (D.C. Cir. 1989).
18 Brady v. Maryland, 373 U.S. 83 (1963). Brady holds that, as a matter of due process, the prosecution must provide defendants with information that would tend to exculpate them.
19 United States v. Santiago, 46 F. 3d 885, 893-94 (9th Cir. 1995) (quotation omitted); see also United States v. Marshall, 132 F. 3d 63, 69 (D.C. Cir. 1998).
20 United States v. Libby, 429 F. Supp. 2d 1, 5-11 (D. D.C. 2006); see also 9 United States Attorney's Manual, Criminal Resource Manual §2052(B)(1) (2002).
21 18 U.S.C. app. 3 §7.
22 Id.; see, e.g., United States v. Clegg, 846 F. 2d 1221, 1223 (9th Cir. 1988) (government appeal from relevance and substitution rulings).
23 See, e.g., United States v. Fernandez, 913 F. 2d 148, 151 (4th Cir. 1990) (describing procedures); United States v. North, 910 F. 2d 843, 898-99 (same), modified on other grounds, 920 F.2d 940 (D.C. Cir. 1990).
24 18 U.S.C. app. 3 §5(a).
25 18 U.S.C. app. 3 §5(b).
26 See supra note 4.
27 18 U.S.C. app. 3 §6(a).
28 United States v. Lee, 90 F. Supp. 2d 1324, 1326 n.2 (D. N.M. 2000) (citing United States v. Baptista-Rodriguez, 17 F. 3d 1354, 1364 (11th Cir. 1994)); see, e.g., United States v. Ivy, 1993 U.S. Dist. LEXIS 13572, at *4 (E.D. Pa. Aug. 12, 1993); United States v. North, 698 F. Supp. 316, 318 (D. D.C. 1988). The Fourth Circuit has applied a classified information privilege in determining admissibility and at the discovery stage as well. See United States v. Smith, 780 F. 2d 1102 (4th Cir. 1985) (en banc). The Ninth Circuit has thus far declined to decide whether the government may assert the privilege to exclude otherwise admissible classified evidence at trial. See United States v. Rewald, 889 F. 2d 836, 847-48 (9th Cir. 1989).
29 See supra note 4.
30 18 U.S.C. app. 3 §6(c)(1); see, e.g., United States v. Moussaoui, 382 F. 3d 453, 476 (4th Cir. 2004), cert. denied, 125 S. Ct. 1670 (2005); United States v. Fernandez, 913 F. 2d 148, 154 (4th Cir. 1990).
31 See, e.g., United States v. Dumeisi, 424 F. 3d 566, 577-78 (7th Cir. 2005), cert. denied, 126 S. Ct. 1570 (2006); United States v. Moussaoui, 382 F. 3d 453, 477-82 (4th Cir. 2004), cert. denied, 544 U.S. 931 (2005); United States v. Rezaq, 134 F. 3d 1121, 1142-43 (D.C. Cir. 1998).
32 See, e.g., Hearing on S. 1482 Before the Subcomm. on Criminal Justice of the Senate Comm. on the Judiciary, 96th Cong., 2d Sess. 9 (1980) (statement of Assistant Attorney General Philip B. Heymann).
33 See, e.g., S. Rep. No. 96-823, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S. Code Cong. & Admin. News 4294, 4302.
34 Old Chief v. United States, 519 U.S. 172, 187 (1997).
35 Id. at 189; see also United States v. Allen, 798 F. 2d 985, 1001 (7th Cir. 1986); Parr v. United States, 255 F. 2d 86, 88 (5th Cir. 1958).
36 United States v. Fernandez, 913 F. 2d 148 (4th Cir. 1990).
37 Id. at 158.
38 Id. at 161 (upholding rejection of other proposed substitutions on similar grounds); see also United States v. Clegg, 846 F. 2d 1221, 1224 (9th Cir. 1988) (affirming district court's rejection of proposed substitution).
39 18 U.S.C. app. 3 §6(e)(2).
41 Fernandez, 913 F. 2d at 162-64.
42 18 U.S.C. app. 3 §6(f); see United States v. North, 910 F. 2d 843, 901-02, modified on other grounds, 920 F. 2d 940 (D.C. Cir. 1990).
43 18 U.S.C. app. 3 §8.
44 18 U.S.C. app. 3 §5(a).