Classified Information Procedures Act of 1980 (CIPA), Pub. L. No. 96-456, 94 Stat. 2025 (Oct. 15, 1980), codified at 18 U.S.C. App. 3, §1-16., as amended, Pub. L. No. 100-690, Tit. VII, §7020(G), 102 Stat. 4396 (Nov. 18, 1988).
The primary purpose of the CIPA was to limit the practice of gray mail by criminal defendants in possession of sensitive government secrets. The gray mailing defendant essentially presented the government with a "Hobson's choice": either allowed disclosure of the classified information or dismiss the indictment. The procedural protections of CIPA protect unnecessary disclosure of classified information.
CIPA is a procedural statute; it neither adds to nor detracts from the substantive rights of the defendant or the discovery obligations of the federal government. Rather, the procedure for making these determinations is different in that it balances the right of a criminal defendant with the right of the sovereign to know in advance of a potential threat from a criminal prosecution to its national security. Each of CIPA's provisions is designed to achieve those dual goals: preventing unnecessary or inadvertent disclosures of classified information and advising the government of the national security "cost" of going forward.
As the Second Circuit has noted, CIPA "presupposes a governmental privilege against disclosing classified information" in criminal matters. Other courts have agreed that CIPA does not create any new privilege against the disclosure of classified information, but merely establishes uniform procedures to determine the materiality of classified information to the defense in a criminal proceeding. Under CIPA, if the government objects to disclosure of classified information that is material to the defense, the court is required to accept that assertion without scrutiny, and impose nondisclosure orders upon the defendant. However, in such cases the court is also empowered to dismiss the indictment against the defendant, or impose other sanctions that are appropriate. Therefore, once classified information has been determined through the procedures under CIPA to be material, it falls to the government to elect between permitting the disclosure of that information or the sanctions the court may impose, including dismissal of charges against the defendant.
Prosecutions implicating classified information can be factually varied, but an important distinction that may be made among them is from whom information is being kept. In cases where the defendant is already privy to some classified information, the government may be seeking to prevent disclosure to the general public. However, in the case of terrorism prosecutions, the more typical situation is likely to be the introduction of classified information as part of the prosecution's case against the defendant. In these cases, protective orders preventing disclosure to the defendant, as well as to the public, may be sought by the government.
Constitutional issues related to withholding classified information from a criminal defendant arise during two distinct phases of criminal litigation. First, issues may arise during the discovery phase when the defendant requests and is entitled to classified information in the possession of the prosecution. Secondly, issues may arise during the trial phase, when classified information is sought to be presented to the trier-of-fact as evidence of the defendant's guilt.
- See, e.g., United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir.) (full-text), cert. denied, 493 U.S. 1004 (1989); United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) (full-text); United States v. Lopez-Lima, 738 F. Supp. 1404, 1407 (S.D. Fla. 1990) (full-text).
- United States v. Aref, 533 F.3d 72, 78-79 (2nd Cir. 2008) (full-text) (holding that the state secrets privilege may be asserted in criminal prosecutions, subject to the procedures in CIPA, to bar disclosure of classified evidence that is not relevant and helpful to the defense).
- United States v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006) (full-text). See also United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989) (full-text).
- The legislative history of CIPA states that "it is well-settled that the common law state secrets privilege is not applicable in the criminal arena." H.Rep. 96-831, pt. 1, at n.12. But see United States v. Aref, 533 F.3d 72 at 79 (observing that this statement in the legislative history "sweeps too broadly").
- 18 U.S.C. app. 3, §6(e)(1).
- Id. §6(e)(2).