This is the first in a series of posts on the Classified Information Procedures Act (CIPA). CIPA is a critical law for national security prosecutions: It establishes a number of key procedures that facilitate a balance between the fundamental rights of defendants in criminal trials and the government’s interests in keeping classified information out of the wrong hands. This post provides an overview of CIPA, some of its principal legal disputes, and a sense of how CIPA has been recently applied. The goal of this series is to flag important CIPA cases as they come up, tracking both when the statute is invoked as well as how it is interpreted.
CIPA provides mechanisms to resolve the trade-offs that arise in connection with the use of classified information in criminal prosecutions. “Classified information,” as defined in Executive Order 13526, covers such information whose “unauthorized disclosure of the information reasonably could be expected to result in damage to the national security.” There are three main ways that classified information might come up during trial: (1) the prosecution may need to use such information as part of its case, (2) the defense may need to do the same and (3) the defense may need to receive classified information in connection with discovery. A particular problem for the government arises when the defendant claims a need to disclose classified information if prosecuted, and the government is faced with a choice between harming national security by allowing its disclosure or dropping charges. Many courts have accordingly noted that CIPA was primarily enacted to combat this problem, known as “graymail.”
CIPA is a procedural statute. It does not enlarge or reduce the government’s existing discovery obligations under Brady, FRCP 16, or the Jencks Act (or anything else). The statute also does not revise the general evidentiary rules on admissibility. Instead, it restructures the timeline for rulings concerning the admissibility of evidence so that courts make all decisions before a trial commences. In short, as the Eleventh Circuit explained in United States v. Collins, CIPA allows the government to learn the “price” of going ahead with a prosecution before actually doing so.
There are two central features of CIPA that accomplish this general objective in practice. First, a defendant is required to provide pretrial notice of any intended use of classified information and the government may require the court to hold a pretrial hearing to determine its admissibility. Second, both at discovery and ahead of trial, the government may, with court approval, offer adequate unclassified summaries or substitutes for classified information, provided “the defendant [has] substantially the same ability to make his defense.”
Overview of CIPA
The main provisions of CIPA are described below. For an overview of the entire statute, see this DOJ memorandum summarizing CIPA. For a comprehensive treatment of CIPA, see David S. Kris and J. Douglas Wilson’s treatise on national security law.
Section 2 allows a party to request a pretrial conference “to consider matters relating to classified information that may arise in connection with the prosecution.” These conferences are generally used to establish the procedures and timeline for hearings concerning other parts of the act.
Section 3 requires a court, upon the government’s request, to issue a protective order “against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case.” Notably, such order applies to defense attorneys who need to receive a security clearance to access covered information, as well as to some defendants.
Section 4 allows the government, “upon a sufficient showing,” to either delete certain classified items from a discovery request or, if disclosure is required, provide adequate unclassified summaries or substitutions. Importantly, the government may (and always does) make its showing in an ex parte and in camera hearing. Courts have rejected challenges to this practice on the grounds that it would defeat the purpose of such a hearing if defense counsel were permitted to learn about the potentially excluded information.
Section 5 requires defendants to provide timely pretrial notice of any plan to disclose classified information at trial. This notice must be particularized and applies to whatever classified information that “a defendant reasonably expects to disclose or to cause the disclosure of . . . in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant.”
Section 6 is often described as the heart of CIPA. Upon request by the government, the court is required to hold a pretrial evidentiary hearing “to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.” Such proceedings may be in camera, although both parties can attend. Should the court determine that certain classified information is admissible and relevant at trial, the government may propose unclassified substitutes, similar to Section 4, provided that the defense is in substantially the same position to make its case.
Section 7 provides for an expedited interlocutory appeal by the government from any decision by a trial court forcing the disclosure of classified information, denying a protective order, and penalizing the retention of classified information.
CIPA Controversies and Current Application
CIPA has not been without controversy. Below are three examples of recurring challenges to elements of CIPA that have been litigated in federal court.
Defendant Access to Information
Under Section 3, courts “shall issue an order to protect against the disclosure of any classified information,” thereby restricting the dissemination of disclosed classified information. Often this requires that potential recipients receive a security clearance before getting to access materials. As such, defense attorneys are generally required to obtain security clearances before they can participate in at least certain elements of a defense. Various parties have challenged this requirement, including on Sixth Amendment grounds, but courts have found it an acceptable balance between a defendant’s ability to put forward a fair defense and the government’s interest in regulating dissemination of classified information.
The more interesting issue is when disclosure to the defendant himself would produce a national security concern. For instance, in In re Terrorist Bombings of United States Embassies in East Africa, one defendant’s attorneys were able to receive security clearances while the defendant was not. The Second Circuit affirmed that the defendant’s counsel could “review a category of classified documents they [could] not share with their client,” without violating his rights. Provided the restriction was adequately tailored, the court determined that the risk of a “disastrous security breach” outweighed an absolute line of communication between a defendant and his attorneys. Similarly, in United States v. Moussaoui , a district court rejected Zacarias Moussaoui’s request to review classified discovery, though he was largely representing himself pro se, because of the risk that such information would make its way back to al-Qaida. Instead, only his standby counsel could review the information, which was found to be consistent with both the Fifth and Sixth Amendments.
Pretrial Notice of Intended Use
Under Section 5, a defendant is required to provide notice to both the court and the government of any classified information that he “reasonably expects to disclose . . . in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant.” A number of defendants have challenged this provision, arguing that it essentially forces them to excessively tip their hand ahead of trial. If they have to disclose all the kinds of classified information they may introduce at trial, the prosecution may learn about their litigation plans (e.g. whether the defendant plans on testifying) or strategy (that is, disclosures may tip off a line of questioning for cross-examination). As such, their rights under the Due Process Clause, Fifth Amendment (self-incrimination), and Sixth Amendment (ability to confront accusers) would be compromised.
Courts have not found these challenges availing. In United States v. Lee, the district court went through each of the above issues and found that CIPA was able to avoid constitutional concerns through a series of “carefully balanced” and familiar procedures. For example, Lee’s self-incrimination claimed lacked force because he was not put at anymore of a disadvantage than he would have been if offering instead an alibi or insanity defense. Furthermore, with respect to his right of cross-examination, the court noted that “the Confrontation Clause does not guarantee the right to undiminished surprise with respect to cross-examination of prosecutorial witnesses.” Overall, a similar theme emerges across these kinds of cases: CIPA passes muster because it adequately balances competing constitutional interests.
The Government’s Ability to Withhold Information
As noted above, CIPA is essentially procedural. Therefore, the government needs to ground its ability to withhold information ordinarily provided at discovery in some sort of existing right or privilege outside of the statute. There are two competing theories from which this power comes: the state secrets privilege and the informant’s privilege. By way of example, two recent CIPA cases from this summer demonstrate these competing schools of thought and how they manifest in ongoing criminal prosecutions.
United States v. Mohammad
The four defendants—Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Asif Ahmed Salim, and Sultane Roome Salim—were indicted in 2015 for providing material support to terrorists through fundraising for Anwar al-Awlaki and al-Qaida. Ahead of the trial, the government filed a Section 4 motion under CIPA and received an ex parte and in camera hearing from the court. The defendants protested the ex parte nature of the proceedings, but the district court dismissed their motion as contrary to the text of CIPA as well as longstanding circuit precedent. As to the classified information submitted by the government during the Section 4 hearing, the court found that it should be deleted from discovery because it was not “relevant and helpful” to the defense.
This standard represents the majority view, which the government endorses, that CIPA’s authority to withhold classified information is grounded in the informant’s privilege. First fashioned in United States v. Yunis, it requires the defendant to make a heightened showing of relevance in order to obtain discovery. In other words, information must be both relevant and helpful. In Yunis, the court analogized CIPA to the informant’s privilege (the ability of the government to withhold the identity of an informant from a criminal defendant developed in Roviaro v. United States) and grafted its balancing approach onto the statute, where the information’s value to the defense is weighed against the government interest at stake. If a court determines that the information is not both relevant and helpful to the defense—as it did in Mohammad—it may delete the discovery request or permit substitutions, as appropriate, under CIPA.
United States v. Ng Lap Seng
Ng Lap Seng was charged with multiple violations of the Foreign Corrupt Practices Act. In response to his discovery request, the government filed a CIPA Section 4 motion, where it asked for an ex parte and in camera hearing to limit the defendant’s discovery request. The court rejected a motion by the defense to attend the proceedings for the same reasons as noted above.
The key part of this case, in contrast to Mohammad, is that the court implemented the Second Circuit’s outlying interpretation of Section 4. This interpretation is grounded in the understanding that the statute “has its origins in the state secrets privilege.” This common law evidentiary privilege allows the head of a relevant government agency to prevent discovery of certain information in civil trials by showing a “reasonable danger” that disclosure will impair national security. The Second and Ninth Circuits are the only two courts to adopt this reading, and thereby require the government to make a valid state secrets claim before invoking Section 4 of CIPA.
The government and other circuits reject this interpretation on the grounds that it conflicts with legislative history and the substance of the privilege itself. First, Congress enacted CIPA in part because it believed that the state secrets privilege could not apply in criminal trials. And this makes sense. In the civil context, the privilege is absolute. There’s consequently a difference between the government prosecuting someone while also categorically withholding evidence from the defendant, and the government, as a defendant, withholding information from civil plaintiffs.
Second, the privilege’s absolute nature conflicts with the balancing approach inherent within CIPA Sections 4 and 6. In turn, there is a logical tension between the “sufficient showing” required under Section 4 and the broadly deferential “reasonable danger” standard used for the privilege.
CIPA is a vital statute for the day-to-day functioning of national security prosecutions. However, its incorporated balancing acts, such as between a defendant’s right to confront the evidence against him versus the government’s national security interest to protect properly classified information, involve difficult legal questions with which lower courts regularly grapple. This tracker will try to address these legal issues taking place during national security prosecutions under the Trump administration.