MCLE Article: Criminal Prosecutions and Classified Information

The use of classified information in court proceedings imposes unique burdens on the defense.

By John D. Cline and K. C. Maxwell

John D. Cline and K. C. Maxwell are attorneys at Jones Day in San Francisco. They have participated in the defense of several cases involving classified information, including United States v. Wen Ho Lee and United States v. James J. Smith.

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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.

Before Indictment

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 court.10

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 this case."12

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 information.30

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 compromised.38

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.

At Trial

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 testimony.

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 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 §4.
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).
40 Id.
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).
45 Id.

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