The Espionage Act is getting star billing this year. From an HBO movie about an old case to a newly charged case alleging a major leak of classified information to special counsel investigations of a former President and the current President, the only thing missing is a new Law & Order spinoff. As Espionage Act cases develop and move toward the center of public view, the American audience should understand how these unusual prosecutions work. Critically, even though these cases involve the U.S. Intelligence Community, classified information, and government activities that are cloaked in secrecy, nothing changes the basic premise that the United States affords criminal defendants due process and the right to defend themselves. In a national security prosecution, the secret world of intelligence information confronts the necessarily public world of trials, evidence, confrontation, and rigorous protection of Constitutional rights. Constitutional rights prevail, of course. But if the trial proceeds without adequate safeguards for classified information, a national security prosecution could disclose the very information the government seeks to keep secret.
The Classified Information Procedures Act, 18 U.S.C. App. III, or CIPA, protects both national security and due process and maintains checks and balances between the Executive and Judicial branches of government. Over decades, the framework has been tested many times with success.
I have written elsewhere about some of the lesser-known substantive components of proving a violation of one of the most commonly charged violations of the Espionage Act, 18 U.S.C. § 793(e), which prohibits unauthorized retention and disclosure of information relating to the national defense, also referred to as “national defense information” or NDI. By all indications, the American public should expect to learn more about that statute in the coming weeks and months. But it is at least as important to understand the unique procedural aspects of a criminal prosecution that involves the Espionage Act (or similar federal offenses) that involves classified discovery or evidence. CIPA is often the procedural heart of such prosecutions.
The National Security Dilemma
Using classified information in a prosecution can cause damage to national security, because any exposure of classified information can reveal sensitive intelligence sources and methods. These kinds of concerns, and procedural safeguards to address them, are familiar to other areas of law. Intelligence agencies are similar in this regard to a private victim — for example, a company that suffers a theft of trade secrets can be protected from having those trade secrets publicized in a prosecution of the thief.
In an Espionage Act case in particular, prosecutors and stakeholders in the U.S. Intelligence Community must decide which documents to use as evidence. Prosecutors want to use documents with jury appeal. If documents are highly classified and relate directly to an easy-to-understand national security issue, prosecutors will not have to take a judge or jury through a potentially complicated, technical explanation of why the compromise of those documents even matters. Intelligence agencies, on the other hand, want prosecutors to use the least sensitive documents possible to minimize the additional damage that a trial could cause. Together, prosecutors and intelligence agencies often agree on “Goldilocks documents” that are sensitive enough, but not too sensitive, and not too arcane. They are just right.
Any discussion of CIPA should begin with what CIPA does not do. CIPA does not give prosecutors or the U.S. Intelligence Community authority to unilaterally declare that a defendant may be prosecuted without seeing the government’s evidence. It does not require judges to accept Executive Branch decisions about what information must be protected or how to protect it. And it does not change the substantive laws of evidence or discovery.
Rather, CIPA helps the government predict the risks that trying a national security case will expose classified information to the public, which in turn could cause further harm. CIPA provides prosecutors, the U.S. Intelligence Community, defendants, and judges with a procedural framework to determine what classified information the government must disclose to the defendant in discovery, what classified information the government must reveal to the public during trial and other proceedings, and whether and how individual items of classified information will be protected from disclosure at each stage of a prosecution. The substantive law that courts apply within this framework is not unique to classified information. It applies the same principles that underlie, for example, the protection of informants’ and victims’ identities and information to avoid jeopardizing their safety.
Litigation and decisions on these points all occur early on in a case. This avoids surprises in the course of a prosecution. It also provides the government with the opportunity to immediately appeal adverse rulings. Ultimately, if judges rule that fairness to a defendant requires the government to disclose classified information that the government seeks to protect, the government can dismiss or modify the charge to reduce or eliminate its disclosure obligation before the proceedings continue. In other words, a judge does not have to grant the government’s requests to protect classified information, but the government can always take its ball and go home.
Purpose of CIPA
CIPA was enacted in 1980, about three years after Congress began a study of unauthorized disclosures of classified information. As the Senate Judiciary Committee recounted, that study found that “prosecution of a defendant for disclosing national security information often requires the disclosure in the course of trial of the very information the laws seek to protect.” In that regard, the “more sensitive the information compromised, the more difficult it becomes to enforce the laws that guard our national security,” because in an Espionage Act case “the government often must choose between disclosing classified information or letting the conduct go unpunished.” That dilemma gave rise to the “graymail” problem: the ability of defendants to threaten disclosure of classified information in the course of trial and thereby constrain the government’s ability to prosecute cases involving classified information. As the Committee described it, however, “graymail” is not “limited to instances of unscrupulous or questionable conduct by defendants.” Rather, entirely proper, honorable, and good-faith efforts by defense teams to engage in discovery, conduct cross-examination, and present a defense can pose the same risk of disclosing classified information.
Congress designed CIPA to “help strengthen the enforcement of laws designed to protect both national security and civil liberties.” CIPA is intended to resolve the conflict between protecting classified information and prosecuting those who compromise it. Based on the need to carefully balance and protect the interests involved, Congress established the following framework to guide courts in making step-by-step assessments.
CIPA itself provides a step-by-step process for the parties and the court to follow. First, CIPA Section 1 defines “classified information” as material that the U.S. government has determined requires protection against unauthorized disclosure for national security reasons. CIPA therefore covers information classified under Executive Order 13526 and “Restricted Data” as defined in the Atomic Energy Act based on the government’s prior decision that the information meets national security-based standards for protection. Those standards are not arbitrary. The government can only classify national security information that has been produced by or for the government and that relates to at least one of several enumerated subject-matter areas. In addition, the level of classification is based on the degree of damage that unauthorized disclosure of information reasonably would be expected to cause. A “Top Secret” classification corresponds to “exceptionally grave damage,” “Secret” classification to “serious damage,” and “Confidential” classification to “damage.” A designated high-level official known as an Original Classification Authority, or OCA, must be able to identify or describe the potential damage.
Whether to classify information is an Executive Branch decision. Courts do not decide whether information is classified.
Prosecutors generally commence CIPA proceedings by moving for a pretrial conference under CIPA Section 2. Most judges have not presided over cases that involve classified information and may not be familiar with national security information, protecting intelligence sources and methods, and the sometimes arcane and cumbersome processes the government uses to keep such information secure. CIPA Section 2 motions therefore often include a preview of the stages of CIPA. See, e.g., United States v. Reality Winner, No. 1:17-cr-34, ECF No. 30 (S.D. Ga. June 19, 2017); United States v. Harold T. Martin III, No. 1:17-cr-69, ECF No. 41 (March 6, 2017). This allows the court to set a schedule that provides sufficient time to litigate each stage and anticipate case-specific issues that may arise.
In a CIPA Section 2 motion, prosecutors also move for the appointment of a Classified Information Security Officer (CISO). At Section 9, CIPA directs the Chief Justice of the U.S. Supreme Court to prescribe rules for protecting classified information in the course of litigation, and those procedures direct judges to designate a CISO from the Department of Justice (DOJ) Litigation Security Group. Although CISOs are DOJ employees, when they support classified litigation they are not part of the prosecution team and serve “in a neutral capacity” on behalf of the court. For example, they manage the movement and storage of classified information, initiate the security clearance process for defense counsel and court staff, provide secure spaces for storing and processing classified information, and advise the court on security procedures.
Next, if prosecutors anticipate providing classified information to the defense team, they move under CIPA Section 3 for a protective order that prohibits disclosure of any classified information that the government produces. Protective orders are routinely used in court cases to protect privacy, trade secrets, informants’ identities, and other sensitive information. CIPA provides that the court “shall” issue such an order upon the government’s motion. The process of obtaining a Section 3 protective order is usually as straightforward as obtaining any other protective order, such as those commonly issued in relation to discovery and subpoenaed material, but defense counsel sometimes push back, as the defense team in the Winner case did. After back-and-forth briefing, the court in Winner found that the government’s proposed protective order did “not preclude the defense from using classified information” in the case, but rather “merely require[d] the defense to comply” with “standard procedures for protecting classified information in the context of criminal cases.”
Section 4 is generally where CIPA litigation begins to get contentious. This provision provides the framework for the court’s decisions regarding discovery. The same principles and obligations that govern discovery in any other criminal case apply in a national security prosecution. In an Espionage Act case, the core evidence against the defendant–the national defense information that the defendant stole, retained, or disclosed–is likely to be classified. CIPA Section 10 explicitly requires prosecutors to notify a defendant of the material on which it intends to rely in proving elements that involve national defense or classified information. Other evidence that shows the defendant’s actions or communications may also be classified because of how it was obtained. Still other classified information may be discoverable even if the government does not intend to use it as affirmative evidence — the same obligations to disclose exculpatory material, prior statements of witnesses, and other categories of information remain unchanged. Accordingly, DOJ policy, specifically Section 9-20.210 of the Justice Manual, directs prosecutors to seek out and review classified information at other agencies to determine whether any such information is potentially discoverable. After prosecutors assess their discovery obligations as to classified information, they may move to protect it.
At the discovery stage, prosecutors have three potential options. They may move to:
- “delete” specific classified information from discovery;
- substitute a summary of the information a classified document contains instead of producing the document itself; or
- stipulate to relevant facts that the classified information would intend to prove.
“Deletion” usually consists of redacting portions of a document, but can also entail withholding a document in its entirety. The government may also move to provide classified discovery to counsel only, and not the defendant, although that issue arises more often in terrorism cases than in Espionage Act cases because Espionage Act defendants generally have already had access to the classified information at issue. The government, of course, cannot use any of these protective measures unilaterally. Rather, the court has the discretion to authorize prosecutors to take these steps “upon a sufficient showing.” CIPA allows the court to permit prosecutors to make ex parte submissions — i.e., submissions that the defense does not see — to explain why each item of classified information requires the type of protection requested.
The use of ex parte proceedings is not unique to CIPA and makes sense. After all, the entire purpose of an application to protect classified information, an informant’s identity or address, or other sensitive information from disclosure to a defendant would be undermined if the defendant received prosecutors’ submissions. It is not unusual for courts to permit defendants to submit their own ex parte submissions, for example to describe defense theories in order to help the court assess the relevance to the defense of the information the government seeks to protect. In this manner, the court ensures that the defendant receives information that discovery principles require the government to disclose, but limits discovery of classified information to material that is necessary to a fair proceeding.
Significantly, CIPA does not provide the substantive law for the court to apply. That derives from Rule 16(d) of the Federal Rules of Criminal Procedure and associated case law. Rule 16(d), which applies in every federal criminal case, authorizes a court to “deny, restrict, or defer discovery or inspection, or grant other appropriate relief,” by good cause shown. Similar to CIPA Section 4, Rule 16(d) allows a party to argue ex parte in support of protecting information from disclosure. There are limits to this authority. Under a doctrine adopted in United States v. Yunis from criminal cases such as Roviaro v. United States, which involved protecting the identity of confidential informants for safety reasons, a court will examine whether the information the government seeks to protect is “relevant to the determination of … guilt or innocence,” “helpful to the defense,” and “essential to a fair determination of the cause.” If the court finds that withholding a particular classified document would deprive the defendant of due process, prosecutors can seek the court’s approval of a summary or admission of the relevant information to provide instead of the document itself.
Prosecutors’ determinations that particular classified information will be discoverable, paired with their assessments of the likelihood that a court will apply requested protections in discovery, is an important factor in discussions with the U.S. Intelligence community elements that control the classified information at issue. Prosecutors cannot use or disclose that information without the originating agencies’ approval, and the originating agencies are not obligated to grant that permission. Discussions about the agencies’ willingness to allow disclosure are often spirited and can take some time. In the end, if agencies refuse to permit disclosure of specific information to the defense team, despite the fact that the defense team will have received security clearances and will be required to keep the information in an approved secure location, prosecutors will not be able to fulfill their legal and ethical obligations in discovery–most significantly, exculpatory information that prosecutors must disclose under Brady v. Maryland — if they proceed. As a result, if agencies withhold permission, prosecutors must dismiss or modify their case to render that information non-discoverable, if possible.
These same analyses will apply to the use of classified information at trial, discussed below. In that context, the stakes are higher, because the default is that evidence will be disclosed to the public.
CIPA also imposes obligations on the defense team. If a defendant expects to either introduce classified information in a proceeding or otherwise cause its disclosure, Section 5 requires the defendant to provide notice to prosecutors. Defendants may not disclose or cause disclosure of any classified information in connection with the prosecution without providing notice first. Section 5 authorizes the court to preclude disclosure if the defendant does not give notice.
The purpose of the notice requirement is to facilitate pretrial litigation of the admissibility of classified information. Accordingly, the notice must be sufficiently specific to allow prosecutors to make informed arguments. Debates over the sufficiency of notice can be protracted. Defense teams resist disclosing details of their anticipated evidence for Constitutional reasons and to protect their trial strategies. It is well settled, however, that the Section 5 notice requirement does not violate the Fifth or Sixth Amendment and is reasonable in light of the need to safeguard classified information.
Pretrial Determination of Admissibility
In an ordinary criminal case, the court may rule on the admissibility of evidence during trial. Under CIPA Section 6(a), the court resolves questions of admissibility in advance of trial or any pretrial proceeding. Particularly as to classified information the defense anticipates disclosing, this provides the government with the opportunity to object and obtain rulings before the information is exposed, an opportunity to appeal adverse rulings early in the proceedings, and, if necessary to protect classified information, dismiss or modify its case rather than permit disclosure.
CIPA does not change the rules of evidence. Admissibility decisions under CIPA Section 6(a) are governed by the same principles that govern evidence in any other prosecution.
Protection at Trial
Admissibility, however, is only part of the analysis of whether and how to use classified information at trial. Particularly in an Espionage Act prosecution, in which the defendant has already had access to most or all of the classified information at issue in the case, a core concern of the prosecution and the U.S. Intelligence Community is limiting the public disclosure of classified information. CIPA exists in part to avoid causing further damage to national security in the course of a prosecution.
After the court decides that specific classified information is admissible as evidence, therefore, CIPA Section 6(c) allows prosecutors to move for specific measures to protect that information from public disclosure even as they use that information as evidence in a public trial. CIPA Section 6(c) itself provides for two options: a stipulation by the government “admitting relevant facts that the specific classified information would tend to prove” and the substitution of a summary of the classified information for the document or documents that contain it. So if a defendant sought to introduce a classified intelligence report that cut against the prosecution’s theory of the case, the court could authorize a means for the jury to learn of the contradiction or the substance of the report without disclosing the more sensitive parts of the report itself, such as the intelligence sources and methods through which specific information was obtained.
Those protections are only available if they do not prejudice the defendant. A court can authorize a stipulation or summary only if its use would “provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.”
This makes proving an Espionage Act case tricky. The most commonly charged sections, 18 U.S.C. § 793(e) and 18 U.S.C. § 794(a), make no mention of “classified” information. Rather, they prohibit stealing, retaining, and disclosing NDI. And while the question of whether information is classified is reserved to the Executive Branch, the question of whether information is NDI is decided by the jury. Prosecutors must therefore prove to a jury that the government has taken steps to protect the information from disclosure, that it relates to national defense, and that its unauthorized disclosure could potentially harm the United States. That may require testimony and other evidence to explain to a jury how a document relates to national defense, the manner in which the government protected it from public disclosure, and the potential harm that could result from its unauthorized disclosure. Those factors are not always obvious, and the government must prove them beyond a reasonable doubt. In most cases, a stipulation or summary cannot take the place of holding the government to its burden of proof and providing the defendant with the opportunity to challenge it.
The government has options to address this problem. One, the “silent witness rule,” is not technically a CIPA remedy, but a court may decide during the CIPA process whether and how the rule can be used. The silent witness rule provides a means to disclose classified evidence only to the judge, the jury, counsel, and witnesses without disclosing it publicly. For example, a testifying witness could refer to people or countries using coded references that correspond to keys that the public does not receive.
The silent witness rule is generally disfavored because it can create confusion by relying on extensive cross-references. More fundamentally, courts view the procedure as akin to closing the courtroom during trial. Courtroom closure can implicate a defendant’s Sixth Amendment right and the First Amendment rights of the press and the public. In any case, regardless of whether classified information is involved, the constitutional test for whether proceedings should be nonpublic is whether
- there is an overriding interest in closing the trial;
- the closure is as narrow as possible to protect that interest; and
- the court has considered reasonable alternatives.
A judge who decides to close a courtroom must make specific factual findings on the record regarding each part of the test. Prosecutors, such as those who successfully argued in favor of the procedure in the prosecution of Kevin Patrick Mallory, stand the best chance of success when they propose procedures that are narrowly tailored to protect a limited number of documents, that are not cumbersome or confusing, and that do not interfere with the defendant’s ability to conduct cross-examination and otherwise prepare a defense.
The ability to protect classified information from public disclosure at trial, and knowing in advance whether and to what extent that will be possible, are critical. When prosecutors and intelligence agency stakeholders assess whether particular classified documents that a defendant stole, retained, or disclosed should form the basis of criminal charges — when they jointly identify the “Goldilocks documents” — part of that calculus depends on the likelihood that those documents will be protected at trial. An intelligence agency’s authorization for prosecutors to use a document could potentially be conditioned upon court approval of a certain type or level of protection.
The Executive Branch controls classified information, so even if the court rules that specific classified information may be used at trial without the protection that prosecutors seek, CIPA Section 6(e) allows the government to object. If the government objects, the court must prohibit the defendant from disclosing that information at trial. This comes at a cost. Section 6(e) also directs the court to dismiss the entire indictment or take other appropriate action, such as dismissing specific counts, ruling against the government on any issue that implicates the classified information, or precluding testimony related to the classified information.
As a result, a court’s denial of a prosecutor’s motion to protect classified information at trial has substantial downstream consequences (assuming it is upheld on interlocutory appeal). Prosecutors and the intelligence agencies with information at stake must decide whether proceeding with the prosecution is worth exposing the classified information at issue. The sentencing component of a plea offer could change based on the potential impact of such exposure. Prosecutors could even conclude that dismissal is their only option.
Prosecutors do not, however, have to react immediately to adverse CIPA rulings. Although prosecutors cannot appeal most pretrial rulings that favor the defense, CIPA Section 7 authorizes appeals of trial courts’ authorizations to disclose of classified information, denials of protective orders, or imposition of sanctions for nondisclosure. Appeals under CIPA pause the proceedings and are conducted on an expedited basis.
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Statutes such as CIPA are essential to protecting both U.S. national security and U.S. democratic traditions. CIPA provides a special procedure for the use and disclosure of classified information, but leaves courts to apply pre-existing substantive legal rules to ensure that defendants in national security cases have the same rights as other defendants in the United States. Classified information is only protected if the Executive and Judicial branches of government agree that it should be kept from public view, and defense teams receive the discovery they need and have a means to use classified evidence.
These principles can be applied in any federal court. The United States has no Star Chamber for national security prosecutions. Espionage Act cases can be tried in relatively high-volume federal jurisdictions such as New York City or Alexandria, Virginia, or less common national security venues such as Augusta, Georgia, and the same processes will apply. As the nation watches Espionage Act prosecutions that are underway and those to come, the CIPA framework and traditional principles of discovery and evidence will determine what the public sees and what is must be kept from public view.