CRIMINAL LAW BULLETIN

CRIMINAL LAW BULLETIN Volume 45, Number 6 Litigating under the Classified Information Procedures Act Alexandra A.E. Shapiro and Nathan H. Seltzer

This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Litigating under the Classi ed Information Procedures Act Alexandra A.E. Shapiro* and Nathan H. Seltzer** I. Introduction Classi ed information and government secrets are generally not a major component of white collar criminal prosecutions. Cases involving classi ed information usually involve accused terrorists, like Zacarias Moussaoui, who was convicted for his role in the September 11, 2001 terrorist attacks, 1 or spies, like Robert Hanssen, who pleaded guilty to spying for the Soviet Union and Russia for more than fteen years. 2 But that is not always the case. There are in fact numerous contexts where classi ed information may be relevant to a white collar criminal prosecution. The government may choose to prosecute someone with whom it had classi ed business or government contracts. The defendant may be a government o cial, like Oliver North, whose alleged o enses included destroying National Security Council documents in the course of aiding rebels ghting in Nicaragua; 3 or, more recently, I. Lewis Scooter Libby, who was convicted of perjury and * Partner, Macht, Shapiro, Arato & Isserles LLP, New York, New York. Ms. Shapiro's practice focuses on white collar criminal defense and appellate advocacy. She served as an Assistant United States Attorney and also as Deputy Chief Appellate Attorney in the United States Attorney's O ce for the Southern District of New York from 1994 99 and as law clerk for the Honorable Ruth Bader Ginsburg of the Supreme Court of the United States from 1993 94 and for the Honorable Stephen F. Williams of the United States Court of Appeals for the District of Columbia Circuit from 1991 92. Ms. Shapiro received her J.D. from Columbia University School of Law in 1991 and her B.A. from Williams College in 1986. ** Associate, Latham & Watkins LLP. Mr. Seltzer's practice focuses on white collar criminal defense and appellate advocacy. He previously served as a law clerk to the Honorable Boyce F. Martin, Jr., of the United States Court of Appeals for the Sixth Circuit, and received his J.D. from Boston University School of Law in 2004 and his B.B.A. from James Madison University in 2001. 1 U.S. v. Moussaoui, 365 F.3d 292 (4th Cir. 2004), opinion amended on reh'g, 382 F.3d 453 (4th Cir. 2004). 2 See, e.g., Thompson Statement Regarding Hanssen Guilty Plea, available at http://www.usdoj.gov/opa/pr/2001/july/308ag.htm (last accessed June 12, 2008). 3 U.S. v. North, 910 F.2d 843, 30 Fed. R. Evid. Serv. 961 (D.C. Cir. 1990), opinion withdrawn and superseded in part on reh'g, 920 F.2d 940, 122 A.L.R. Fed. 771 (D.C. Cir. 1990) (rejected by, U.S. v. Jimenez, 256 F.3d 330, 57 Fed. R. Evid. Serv. 546 (5th Cir. 2001)). 917

Criminal Law Bulletin related o enses arising from the outing of an undercover CIA agent. 4 The defendant might also present a public authority defense i.e., a claim that he was authorized by the government to engage in what would otherwise be illegal activity. In this regard, James Gi en answered alleged violations of the Foreign Corrupt Practices Act and charges of money laundering based on transactions with the President of the Republic of Kazakhstan by claiming he did so at the behest of the United States government; 5 similarly, Ronald Rewald claimed that he stole hundreds of millions of dollars from investors because the CIA told him to spend the investors' money extravagantly so as to cultivate relationships with foreign potentates and wealthy businessmen who would be useful intelligence sources. 6 In these circumstances, it is essential to understand the complex rules set forth by the Classi ed Information Procedures Act ( CIPA ), which govern the access to, use, and admissibility of classi ed information in criminal proceedings. 7 CIPA was enacted in 1982 to address the problem of graymail, 8 i.e., a threat to release classi ed information in a ploy to pressure the government to forego a prosecution. 9 In these situations, without knowing exactly what the defendant intended to release, the government had no way of evaluating the gravity of danger to national security should the prosecution continue and the information be dis- 4 U.S. v. Libby, 453 F. Supp. 2d 35 (D.D.C. 2006). 5 U.S. v. Giffen, 473 F.3d 30, 98 A.F.T.R.2d 2006-8124 (2d Cir. 2006). 6 U.S. v. Rewald, 889 F.2d 836, 29 Fed. R. Evid. Serv. 145, 103 A.L.R. Fed. 159 (9th Cir. 1989), opinion amended, 902 F.2d 18 (9th Cir. 1990). 7 18 U.S.C. App. III. 8 S. Rep. No. 823, 96th Cong., 2d Sess. 4, reprinted in 1980 U.S. Code Cong. & Admin. News 4294, 4297. 9 SeeU.S.v.Smith, 780 F.2d 1102, 1105, 19 Fed. R. Evid. Serv. 1 (4th Cir. 1985) (explaining that graymail is the practice whereby a criminal defendant threatens to reveal classi ed information during the course of his trial in the hope of forcing the government to drop the criminal charges against him ); U.S. v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) ( The looming, but unevaluated, threat that the nation's security might be damaged by a prosecution has been termed greymail practiced upon the government. Sensitive regard for national security was seen as having resulted in foregoing prosecutions for serious crimes, even in cases where the changes were great that, properly handled prior to trial, a defendant could well have been accorded due process without any cost in public revelation of classi ed information. ). 918

Litigating under the Classified Information Procedures Act closed, 10 and thus had to drop a number of prosecutions to avoid the risk of harm to national security. 11 The statute was also intended to reconcile, on the one hand, a criminal defendant's right to obtain prior to trial classi ed information and introduce such material at trial, with, on the other hand, the government's duty to protect from disclosure sensitive information that could compromise national security. 12 CIPA s primary feature now allows the trial judge to rule on questions of admissibility involving classi ed information before the introduction of the evidence in open court... [so as] to permit the government to ascertain the potential damage to national security of proceeding with a given prosecution before trial. 13 The statutory procedures are ordinarily triggered when a defendant submits, pursuant to Section 5(a), a notice of intent to use classi ed information in his defense. 14 After the defendant has submitted his notice under Section 5(a), the government may invoke Section 6, which requires pre-trial determinations of the use and admissibility of the classi ed information. 15 If the court determines that the defendant may use the information i.e., that the information is relevant and admissible Section 6(c) takes account of the government's need to protect classi ed information while at the same time respecting the defendant's constitutional right to present a defense, by permitting the court to order (A) the substitution for such classi ed information of a statement admitting relevant facts that the speci c classi ed information would tend to prove; or (B) the substitution for such classi ed information of a summary of the speci c classi ed information. In order to safeguard the defendant's constitutional rights, the substituted information must provide the defendant with substantially the same ability to make his defense as would disclosure of the speci c classi- ed information. 16 If the proposed substitutions or summary will not provide the defendant with substantially the same ability to make his defense, the 10 U.S. v. Pringle, 751 F.2d 419, 427 (1st Cir. 1984). 11 See, e.g., U.S. v. Anderson, 872 F.2d 1508, 1514, 28 Fed. R. Evid. Serv. 162 (11th Cir. 1989); U.S. v. Smith, 780 F.2d 1102, 1105, 19 Fed. R. Evid. Serv. 1 (4th Cir. 1985) (en banc). 12 U.S. v. Libby, 453 F. Supp. 2d 35 (D.D.C. 2006) (citing U.S. v. Rezaq, 134 F.3d 1121, 1142, 48 Fed. R. Evid. Serv. 1079 (D.C. Cir. 1998)). 13 Rezaq, 134 F.3d at 1142. 14 18 U.S.C. App. 5(a). 15 18 U.S.C. App. 6(a). Section 6(a) further requires the court to set forth in writing the basis for its determination[s]. 16 18 U.S.C. App. 6(c). 919

Criminal Law Bulletin government may submit an a davit of the Attorney General certifying that disclosure of classi ed information would cause identi able damage to the national security of the United States. 17 The court must then order the defendant not to disclose the information, 18 and must dismiss the indictment or take other action that protects the defendant's rights. 19 Thus, CIPA recognizes that the defendant's right to present his defense and the government's desire to prevent the disclosure of classi ed information cannot always be accommodated, and in those circumstances, the defendant's constitutional rights must prevail, and the government may choose to forego a prosecution rather than disclose classi ed information. Section 6 sets forth the procedures that must be followed when a defendant seeks to use classi ed information in his defense. Of course, defendants often do not know or have access to all of the classi ed information they believe exists, which may be relevant to the defense. In such circumstances, defendants will seek additional information from the government pursuant to a discovery request. CIPA Section 4, which governs the discovery of classi ed information, provides that a court may authorize the government to delete speci c items of classi ed information from documents to be made available to the defendant through discovery, or to submit a [non-classi ed] summary of the information, or to substitute a statement admitting relevant facts that the classi ed information would tend to prove. 20 The court may permit the government to request such authorization in an ex parte ling. 21 Though seemingly clear cut, Section 4 and Section 6 have been the subject of numerous disputes over the rights of defendants and the information privileges accorded to the government. In this article we address the procedural requirements of CIPA, the major court decisions interpreting the statute, and lay out speci c steps to take and arguments counsel for defendants should make in order to best protect defendants' rights under CIPA s complex statutory provisions. II. The Use, Relevance, and Admissibility of Classi ed Information under Cipa Section 6 Section 6 charges a court with making a pretrial determination 17 18 U.S.C. App. 6(c)(2). 18 18 U.S.C. App. 6(e). 19 18 U.S.C. App. 6(e)(2)(A) to (C). For example, the court shall dismiss the indictment or information, dismiss[] speci ed counts of the indictment, nd[] against the United States on any issue as to which the excluded classi ed information relates, or strik[e] or preclude[e] all or part of the testimony of a witness. 20 18 U.S.C. App. 6(e)(2)(A) to (C). 21 18 U.S.C. App. 6(e)(2)(A) to (C). 920

Litigating under the Classified Information Procedures Act concerning the use, relevance, or admissibility of the classi ed information identi ed by the defendant in his Section 5(a) notice. The government has often argued that CIPA requires a three-step inquiry that ultimately balances the defendant's need for the classi ed information against the government's interest in shielding the information from disclosure. In particular, the government has argued that whenever it asserts its classi ed information privilege, the classi ed information should be precluded from use at trial unless the court nds that: (1) the information is relevant; (2) it is helpful to the defense ; and (3) the defendant's interest in using the information outweighs the government's need to protect it from disclosure. 22 Courts have consistently rejected the government's argument, which would impose greater hurdles to admissibility than the Federal Rules of Evidence. Instead, courts have generally concluded that standard evidentiary principles under the Federal Rules of Evidence govern admissibility. 23 Thus, courts have concluded that CIPA is a procedural tool that requires a court to rule on the relevance of classi ed information before it may be introduced ; 24 that CIPA has no substantive impact on the admissibility or relevance of probative evidence ; 25 and that CIPA does not undertake to create new law governing admissibility. 26 When addressing the relevance and admissibility of classi ed information, therefore, Section 6 requires courts to ignore 22 See U.S. v. Libby, 453 F. Supp. 2d 35, 38 (D.D.C. 2006); United States v. Nacchio, No. 05-cr-00545-EWN (Dec. 6, 2006) (Docket No. 195). 23 See, e.g., U.S. v. Collins, 720 F.2d 1195, 1199 (11th Cir. 1983). The Fourth Circuit is the only court to conclude to the contrary. See U.S. v. Smith, 780 F.2d 1102, 1106 10, 19 Fed. R. Evid. Serv. 1 (4th Cir. 1985) (en banc). The Fourth Circuit reached this conclusion even though it acknowledged that [t]he circuits that have considered the matter agree with the legislative history cited that ordinary rules of evidence determine the admissibility under CIPA. Id. at 1106. Nevertheless, the divided en banc court held that Federal Rule of Evidence 501 includes a common law privilege for classi ed information, and therefore that a court must balance the public interest in nondisclosure against the defendant's right to prepare a defense. Id. at 1107. 24 See, e.g., U.S. v. Dumeisi, 424 F.3d 566, 578, 68 Fed. R. Evid. Serv. 273 (7th Cir. 2005) ( The CIPA's fundamental purpose is to protect and restrict the discovery of classi ed information in a way that does not impair the defendant's right to a fair trial. ). 25 U.S. v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998). 26 U.S. v. Wilson, 732 F.2d 404, 412, 15 Fed. R. Evid. Serv. 978 (5th Cir. 1984). See also U.S. v. Yunis, 867 F.2d 617, 623, 27 Fed. R. Evid. Serv. 792 (D.C. Cir. 1989) ( CIPA creates no new rule of evidence regarding admissibility. ). 921

Criminal Law Bulletin that the information is classi ed and to treat it like any other evidentiary determination. 27 Accordingly, the rst step in the court's analysis under Section 6 is to ask whether the information is relevant under the Federal Rules. Only after the court determines that the evidence is relevant and admissible should the court consider the classi ed nature of the information and the government's interest in protecting it from disclosure. At that point, under Section 6(c), the government may propose to substitute a statement admitting the relevant facts or substitute a non-classi ed summary of the information, so long as it provides the defendant with substantially the same ability to make his defense. This procedure thus ensures that the defendant may present his defense without unnecessarily disclosing classi ed information. III. Discovery of Classi ed Information Although its interpretation under Section 6 has generally been rejected, the government has had far more success thwarting defendants from discovering classi ed information in the rst place. CIPA section 4 addresses the discovery of classi ed information. Its application is ordinarily triggered in response to a defendant's request for discovery under Federal Rule of Criminal Procedure 16. Section 4 provides, in relevant part, that the court may authorize the United States to delete speci c items of classi ed information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to submit a summary of the information for such classi ed documents, or to substitute a statement admitting relevant facts that the classi ed information would tend to prove. The legislative history to Section 4 states that it is not intended to a ect the discovery rights of a defendant under Rule 16. 28 However, the majority of prosecutions addressing the scope of discovery under Section 4 have involved defendants often accused terrorists who do not themselves possess classi ed information, and 27 Libby, 453 F. Supp. 2d at 29 40; See also S. Rep. No. 96-823, 96th Cong., 2d Sess. (1980), at 8; House Conf. R. No. 96-1436, 96th Cong., 2d Sess. (1980), at 12 ( As noted in the reports to accompany[,]...[n]othing in the conference substitute is intended to change the existing standards for determining relevance and admissibility. ); Anderson, 872 F.2d at 1514 ( The legislative history is clear that Congress did not intend to alter the existing standards for determining relevancy and admissibility of evidence. ); U.S. v. Wilson, 750 F.2d 7, 16 Fed. R. Evid. Serv. 1114 (2d Cir. 1984). 28 H.R. Rep. No. 96-831, pt. 1, at 27 (1980). 922

Litigating under the Classified Information Procedures Act instead seek access to classi ed information to assist their defense. 29 This often includes information about the means or methods the government used to identify and capture the suspected terrorist. In light of these circumstances, courts have been reluctant to interpret Section 4 to require the government to hand over classi ed information to an accused terrorist. Courts have thus identi ed a classi ed information privilege possessed by the government, and have held that disclosure under Section 4 is not required unless the information is relevant and helpful to the defense of an accused. 30 Thus, although Rule 16 provides that information is discoverable so long as it is material to preparing the defense (which has been interpreted to include information both inculpatory and exculpatory 31 ), the District of Columbia Circuit and other courts have held that CIPA Section 4 imposes an additional burden on the defendant to show more: without even knowing what the information is, a defendant must somehow show that it will be helpful to his defense. 32 The result of this interpretation is that Section 4 permits the government to withhold entirely classi ed 29 In United States v. Pringle, for example, the First Circuit emphasized that none of the defendants had classi ed information, and were instead seeking to access classi ed information the government wished to protect. U.S. v. Pringle, 751 F.2d 419, 427 (1st Cir. 1984). And the court in United States v. George, stated that [t]he concerns of the court and the government in Yunis [where the defendant was an accused terrorist] are not fully applicable here because there has been no allegation that the defendant [the former deputy director for operations of the CIA] might use the information to being harm to anyone. U.S. v. George, 786 F. Supp. 11, 14 (D.D.C. 1991). 30 U.S. v. Yunis, 867 F.2d 617, 622, 27 Fed. R. Evid. Serv. 792 (D.C. Cir. 1989) (quoting Roviaro v. U.S., 353 U.S. 53, 60 61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)). See also id. at 623 ( While CIPA creates no new rule of evidence regarding admissibility, the procedures it mandates protect a government privilege in classi ed information similar to the informant's privilege identi ed in Rovario. ); U.S. v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988); U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 49 Fed. R. Evid. Serv. 740 (9th Cir. 1998) (agreeing with Yunis and Pringle); Pringle, 751 F.2d at 427. 31 Evidence is material to preparing the defense as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal. U.S. v. Lloyd, 992 F.2d 348, 351, 93-1 U.S. Tax Cas. (CCH) P 50317, 72 A.F.T.R.2d 93-5437 (D.C. Cir. 1993). This would include information that could refresh the defendant's recollection... and thus potentially lend credibility to the testimony of anyone... who might testify on the subject, U.S. v. Libby, 429 F. Supp. 2d 1, 39 (D.D.C. 2006), and information that could be used to counter the government's case or to bolster a defense, U.S. v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993), including both exculpatory and inculpatory evidence, U.S. v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998), as amended, (Mar. 6, 1998). 32 See, e.g., Libby, 453 F. Supp. 2d at 40 (describing Yunis); Yunis, 867 F.2d at 624 (describing the di culties faced by defendants as more apparent than real ). 923

Criminal Law Bulletin information that would otherwise be discoverable under Rule 16, without providing any substitution, summary, or admission of relevant facts as required by Section 4 if the defendant cannot demonstrate that the information (which he usually does not know about) is helpful to his defense. 33 This reading of the statute imposes an unfair burden on the defendant that is di cult to square with the plain text of Section 4. The text does not authorize the court to excuse the government from its Rule 16 obligations unless some more stringent showing of discoverability is made; on the contrary, it speaks of special procedures a court may authorize for disclosure of classi ed information that is discoverable under Rule 16. Section 4 speci es three ways the government (with the permission of the court) may disclose information that is to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure. As at least one court has recognized, [b]y its terms, Section 4 applies only after it has been determined that documents are discoverable.... Accordingly, Section 4 only applies after the threshold question of materiality [under Rule 16] is made in favor of disclosure or the government agrees to disclosure without making a materiality challenge. 34 If the government has concerns about disclosing speci c information that is otherwise discoverable, the statute provides it with three 33 See also Sarkissian, 841 F.2d at 965 (holding that Section 4 clarif[ies] the court's powers... to deny or restrict discovery in order to protect national security ). Notwithstanding the comprehensive structure of CIPA, the Second Circuit recently held that the state secrets privilege, applicable in the civil context, must be considered under Section 4. The court held: [T]he district court must rst decide whether the classi ed information the Government possesses is discoverable. If it is, the district court must then determine whether the state-secrets privilege applies.... If the evidence is discoverable but the information is privileged, the court must next decide whether the information is helpful or material to the defense, i.e., useful to counter the government's case or bolster a defense. U.S. v. Aref, 533 F.3d 72, 80 (2d Cir. 2008), for additional opinion, see, 285 Fed. Appx. 784 (2d Cir. 2008), cert. denied, 129 S. Ct. 1582, 173 L. Ed. 2d 679 (2009) and cert. denied, 129 S. Ct. 1582 (2009) and cert. denied, 129 S. Ct. 1582, 173 L. Ed. 2d 679 (2009) and cert. denied, 129 S. Ct. 1582 (2009); see also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 122 (2d Cir. 2008), rehearing denied in part, 553 F.3d 150 (2d Cir. 2009) and cert. denied, 129 S. Ct. 2778 (2009) and petition for cert. led (U.S. Aug. 31, 2009) ( We have recently held that the discretion conferred upon district courts by CIPA encompasses entry of an order permitting the government to withhold altogether classi ed information that might otherwise have been discoverable, as long as this information is neither helpful [n]or material to the defense. ) (quoting Aref, 533 F.3d at 76, 80). 34 Libby, 429 F. Supp. 2d at 23. See also 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure 5672 (2004) ( Once the trial court determines that the classi ed information is... discoverable..., the government can le a motion under CIPA Section 4.). 924

Litigating under the Classified Information Procedures Act options. It can request permission to (1) delete speci c items of classi ed information from documents otherwise to be turned over; (2) submit a [non-classi ed] summary of the information for such classi- ed documents ; or (3) substitute a [non-classi ed] statement admitting relevant facts that the classi ed information would tend to prove. The statute does, of course, provide that the government can make this request to the court alone, explaining why substitutions are necessary, without review by the defendant. And the court reviews the request to determine whether permitting one of the three options will still provide the defendant with the information he is entitled to under Rule 16. But the plain language of Section 4 does not authorize the government to withhold entirely information that is otherwise discoverable under Rule 16 without providing a summary or substitution. This interpretation is not only most consistent with the plain text and Congress's explicit statement that the statute is not intended to affect the discovery rights of a defendant under Rule 16, 35 but is also most consistent with the remainder of the statutory structure, and the Supreme Court has long held that in ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. 36 Section 6 provides considerable insight into how Section 4 should be interpreted. Section 6 requires the court to apply the ordinary evidentiary rules to determine whether certain classi ed information is admissible. If the information is admissible under those rules, Section 6(c) then implements a procedure wherein the government can, instead of disclosing the actual classi ed information, provide a statement admitting the relevant facts or provide a non-classi ed summary of the information, so long as the statement or summary provides the defendant with substantially the same opportunity to present his defense. Section 4 is structured precisely the same way: if the information is discoverable under ordinary rules, the government can, instead of disclosing the actual classi ed information, provide a statement admitting the relevant facts or provide a non-classi ed summary of the information, or delete certain classi ed information from otherwise discoverable documents. So interpreted, the provisions e ectuate Congress' desire to provide the government with the ability to evaluate the impact of its prosecution on national security while at the same time providing the defendant with the information to which he is entitled in order to prepare his defense. 35 H.R. Rep. No. 96-831, pt. 1, at 27 (1980). 36 Household Credit Services, Inc. v. Pfennig, 541 U.S. 232, 239, 124 S. Ct. 1741, 158 L. Ed. 2d 450 (2004) (citation omitted). 925

Criminal Law Bulletin IV. Important Steps to Take when Defending a Case Involving Classi ed Information There are several important steps to take when it becomes clear that classi ed information may be involved in a criminal prosecution. E As early as possible, contact the Court Security Specialists at the Department of Justice to obtain the necessary security clearances. The security specialists are employed by the Department of Justice, but work independently and assist defense counsel in managing the classi ed information. You cannot have access to classi ed information without obtaining the necessary clearance and it requires a lengthy government background check. 37 E Once the clearances are obtained, review the necessary information you are permitted access to in the Secure Classi ed Information Facility ( SCIF ). The SCIF may be the only place that you can discuss the information, and in fact, you will likely have to do all of your work in the SCIF, including the drafting of any motions or briefs, which will then be held in the custody of the Court Security Specialist. Having to work in the SCIF, and not being able to take notes or documents (or even discuss the case) outside of the SCIF places practical burdens on defense counsel that require signi cant planning and preparation. And, in fact, depending upon the location of the case and whether there is a SCIF located nearby, the government may need to build a new SCIF for defense counsel which could take many months to complete. E Begin to prepare a Section 5(a) notice to apprise the court and prosecution of the information you will use in presenting the defense. This is a necessary part of the process even though it has the e ect of disclosing to the prosecution much of the defense case and strategy. E Seek additional discovery. The government's opposition may vary depending on whether the defendant is an accused terrorist or spy (where the government may vigorously oppose access to classi ed information) or the defendant is someone who previ- 37 See also In re Terrorist Bombings, 552 F.3d at 122 ( We now hold that CIPA authorizes district courts to limit access to classi ed information to persons with a security clearance [to the exclusion of defendants] as long as the application of this requirement does not deprive the defense of evidence that would be useful to counter the government's case or to bolster a defense. The requirement that individuals seeking access to classi ed material establish their trustworthiness by obtaining a security clearance is consistent with CIPA s imposition on the district courts of a mandatory duty to prevent the unauthorized disclosure of classi ed information in the custody of the United States... courts. ). 926

Litigating under the Classified Information Procedures Act ously had access to classi ed information and there is no allegation that the defendant might use the information in a manner that would damage national security. Nevertheless, defendants should argue for the plain language reading of Section 4 and access to information otherwise discoverable under Rule 16, regardless of its classi ed nature, but subject to the three means of disclosure permitted under Section 4. E Even if the court adheres to the majority position with respect to Section 4, however, and entertains the government's argument that it can withhold otherwise discoverable information, an interesting issue related to the scope of discovery can arise when the defendant and/or his attorneys possess top secret security clearances. The government's opposition to disclosure, ordinarily, is that disclosure creates a risk to national security. However, by granting security clearances the federal government has already made a determination that providing these persons with classi ed information is consistent with national security. Thus, when a court undertakes to balance the defendant's need for the information against the government's interest in protecting national security, it could be argued that the presence of security clearances negates the government's argument indeed, it demonstrates that these concerns have already been taken into account. Thus, in any balancing of interests, a defendant's interest in determining for himself whether the classi ed information is helpful to his defense and whether to so use it (subject to a CIPA Section 6 hearing), should prevail. Courts have, at the very least, suggested that the analysis is di erent where there is no allegation that the defendant might use the information to damage national security. 38 E Be prepared for the prosecution to argue that Section 6 admissibility determinations require the court to balance the government's interest in nondisclosure with the defendant's need for the information. The government proposed this standard to Congress in 1980, and it was rejected, 39 but the government continues to advocate it in court. When dealing with classi ed information, the government will always have an institutional advantage over defense counsel. Defense counsel 38 Libby, 429 F. Supp. 2d at 23 ( In most cases in which the government has invoked Section 4,... the defendant and his attorneys did not possess the requisite security clearances.... ). 39 Libby, 453 F. Supp. 2d at 40 (citing Graymail S. 182, Hearing Before Subcommittee on Criminal Justice of Senate Judiciary Committee, 96th Cong., 2d Sess. (1980), at 3, 18. See also Smith, 780 F.2d at 1111 (Butzner, J., dissenting) (quoting the testimony of an assistant attorney general, Feb. 7, 1980). 927

Criminal Law Bulletin may nd that the government is simultaneously prosecuting the defendant and attempting to restrict his ability to use information that he feels is necessary to defend himself against the prosecution. 40 Defense counsel must therefore plan carefully and pay special attention to CIPA s requirements and the case law interpreting it to ensure that courts do not become remiss in protecting a defendant's right to a full and meaningful presentation of his claim to innocence. 41 40 U.S. v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990). 41 Fernandez, 913 F.2d at 154. 928