Protecting Classified Information and the
Rights of Criminal Defendants: The Classified
Information Procedures Act
Edward C. Liu
Legislative Attorney
Todd Garvey
Legislative Attorney
March 31, 2011
Congressional Research Service
7-5700
www.crs.gov
R41742
CRS Report for Congress
P
repared for Members and Committees of Congress
The Classified Information Procedures Act
Summary
A criminal prosecution involving classified information may cause tension between the
government’s interest in protecting classified information and the criminal defendant’s right to a
constitutionally valid trial. In some cases, a defendant may threaten to disclose classified
information in an effort to gain leverage. Concerns about this practice, referred to as “graymail,”
led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide
uniform procedures for prosecutions involving classified information.
The Classified Information Procedures Act (CIPA) provides criminal procedures that permit a trial
judge to rule on the relevance or admissibility of classified information in a secure setting. It
requires a defendant to notify the prosecution and the court of any classified information that the
defendant may seek to discover or disclose during trial. During the discovery phase, CIPA
authorizes courts to issue protective orders limiting disclosure to members of the defense team
that have obtained adequate security clearances, and to permit the government to use unclassified
redactions or summaries of classified information that the defendant would normally be entitled
to receive.
If classified information is to be introduced at trial, the court may allow substitutes of classified
information to be used, so long as they provide the defendant with substantially the same ability
to present a defense and do not otherwise violate his constitutional rights. Among the rights that
may be implicated by the application of CIPA in a criminal prosecution are the defendant’s right
to have a public trial, to be confronted with the witnesses against him, and to have the assistance
of counsel. CIPA may also be implicated by the obligation of the prosecution to provide the
defendant, under Brady v. Maryland, with exculpatory information in its possession, and to
provide the defendant with government witnesses’ prior written statements pursuant to the Jencks
Act.
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Contents
Background ................................................................................................................................ 1
The Classified Information Procedures Act.................................................................................. 2
Pretrial Conferences, Required Notice, and Appeals .............................................................. 2
Protective Orders and Security Clearances ............................................................................ 3
Discovery ............................................................................................................................. 4
Brady and Jencks Material .............................................................................................. 4
Depositions ..................................................................................................................... 5
Admissibility of Classified Information................................................................................. 6
Substitutions ................................................................................................................... 6
Confrontation Clause and the Silent Witness Rule ........................................................... 7
Contacts
Author Contact Information ........................................................................................................ 8
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The Classified Information Procedures Act
riminal prosecutions involving classified information inherently create a tension between
the government’s legitimate interest in protecting sensitive national security information,
C and a criminal defendant’s rights under the United States Constitution and federal law. In
many cases, the executive branch may resolve this tension before any charges are formally
brought by simply forgoing prosecution in order to safeguard overriding national security
concerns.
“Graymail” colloquially refers to situations where a defendant may seek to introduce tangentially
related classified information solely to force the prosecution to dismiss the charges against him.1
However, in other cases, classified information may actually be material to the defense, and
excluding it would violate the defendant’s constitutional rights.
This tension was the primary factor leading to the 96th Congress’s enactment of the Classified
Information Procedures Act (CIPA), 2 which “provides pretrial procedures that will permit the
trial judge to rule on questions of admissibility involving classified information before
introduction of the evidence in open court.”3 These procedures are intended to provide a means
for the court to distinguish instances of graymail from cases in which classified information is
actually material to the defense.
Background
Before discussing the specifics of the Classified Information Procedures Act in criminal
prosecutions, this report will first provide a general overview of the government’s ability to
restrict disclosure in civil litigation by asserting the state secrets privilege. The state secrets
privilege is a judicially created evidentiary privilege that allows the government to resist court-
ordered disclosure of information during civil litigation, if there is a reasonable danger that such
disclosure would harm the national security of the United States. Although the common law
privilege has a long history, the Supreme Court first described the modern analytical framework
of the state secrets privilege in the 1953 case of United States v. Reynolds.4
If the state secrets privilege is appropriately invoked in civil litigation, it is absolute and the
disclosure of the underlying information cannot be compelled by the court. Still, a valid
invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds, for
instance, the Supreme Court did not dismiss the plaintiffs’ claims, but rather remanded the case to
determine whether the claims could proceed absent the privileged evidence.5 Yet, significant
controversy has arisen with respect to the question of how a case should proceed in light of a
successful claim of privilege. Courts have varied greatly in their willingness to either grant
government motions to dismiss a claim in its entirety or allow a case to proceed “with no
consequences save those resulting from the loss of evidence.”6 Whether the assertion of the state
1 See S. REPT. 96-823 at 1-4 (part of the legislative history of CIPA).
2 P.L. 96-456, codified at 18 U.S.C. app. 3 § 1-16.
3 S.REPT. 96-823, at 1.
4 345 U.S. 1 (1953).
5 Id.
6 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (holding that there was no feasible way to
litigate case alleging unlawful extraordinary rendition without disclosing privileged state secrets).
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secrets privilege is fatal to a particular suit, or merely excludes privileged evidence from further
litigation, is a question that is highly dependent upon the specific facts of the case.
The Classified Information Procedures Act
As the Second Circuit has noted, CIPA “presupposes a governmental privilege against disclosing
classified information” in criminal matters.7 Other courts have agreed that CIPA does not create
any new privilege against the disclosure of classified information,8 but merely establishes
uniform procedures to determine the materiality of classified information to the defense in a
criminal proceeding.9 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.10 However, in such cases the court
is also empowered to dismiss the indictment against the defendant, or impose other sanctions that
are appropriate.11 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. The issues
implicated during both of these phases are discussed below.
Pretrial Conferences, Required Notice, and Appeals
CIPA contains a number of provisions that are intended to create opportunities to resolve issues
related to the use of classified information in advance of trial, in a secure setting. For example, at
any time after charges have been filed against a defendant, any party may request a pretrial
7 U.S. v. Aref, 533 F.3d 72, 78-79 (2nd Cir. 2008) (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).
8 U.S. v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006). See also U.S. v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989).
9 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.REPT. 96-831 pt. 1, at n.12. But, see U.S. v. Aref, 533 F.3d 72 at 79 (observing that
this statement in the legislative history “sweeps too broadly”).
10 18 U.S.C. app. 3, § 6(e)(1).
11 18 U.S.C. app. 3, § 6(e)(2).
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conference to discuss issues related to the potential disclosure of classified information. Among
the issues that may be discussed are schedules for discovery requests and hearings to determine
the relevance, admissibility, and materiality of classified information.12
CIPA also requires a defendant to notify the court and the prosecution of any classified
information that he reasonably expects to disclose or cause the disclosure of.13 If a defendant fails
to provide such notice, he may be penalized by being precluded from using such evidence at
trial.14
In order to ensure that the disclosure of classified information is not premature, the government
may also take an interlocutory appeal of any CIPA ruling, rather than waiting until a trial has
concluded. In this way, the government does not have to risk disclosure of classified information
that would later have been determined by a reviewing court to be protected.15 Such appeals will
be expedited by the court of appeals.16
Protective Orders and Security Clearances
In order to safeguard classified information that is disclosed, CIPA authorizes courts to issue
protective orders prohibiting or restricting the disclosure of such classified information.17 In some
cases, protective orders may limit disclosure to individuals or attorneys who have received a
security clearance from the government. However, some defendants may be ineligible for the
necessary security clearances. In these cases, courts may issue protective orders prohibiting
cleared counsel from sharing any classified information with the defendant.18 In the event that the
defendant’s attorneys are also unable to obtain the necessary security clearances, courts have
appointed counsel with the necessary security clearance to represent the defendant in matters
where disclosure of classified information may be necessary. However, the cleared counsel may
be prohibited from disclosing the classified information to the uncleared defendant or uncleared
defense counsel.
For example, in In re Terrorist Bombings of United States Embassies in East Africa, the court
entered a protective order limiting disclosure of classified material to persons who had obtained
sufficient security clearances.19 The defendant’s attorneys were able to obtain security clearances,
but the defendant was not.20 Because of this, the defendant’s attorneys were unable to share with
their client all the information they learned from the classified documents.21 Other facts, deemed
12 18 U.S.C. app. 3, § 2.
13 18 U.S.C. app. 3, § 5(a).
14 18 U.S.C. app. 3, § 5(b).
15 18 U.S.C. app. 3, § 7(a). An appeal may be taken after any ruling under CIPA authorizing the disclosure of classified
information, imposing sanctions for nondisclosure of classified information, or refusing to issue a protective order
sought by the United States.
16 18 U.S.C. app. 3, § 7(b). Interlocutory appeals taken during trial shall be argued within four days, and the appellate
court will render its decision within four days after argument.
17 18 U.S.C. app. 3, § 3.
18 See Brian Z. Tamanaha, A Critical Review of The Classified Information Procedures Act, 13 AM. J. CRIM. L. 277,
290, n.64, n.65 (1986).
19 In re Terrorist Bombings of US Embassies in East Africa, 552 F.3d 93, 118 (2d Cir. 2008).
20 Id.
21 Id.
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by the court to be relevant to the defendant’s case were declassified or stipulated by the
government.
The defendant in this case argued that this restriction on communication violated his Sixth
Amendment right to have the assistance of counsel. The Second Circuit rejected this claim, noting
that the right to the assistance of counsel does not preclude every restriction on communication
between defense counsel and the defendant.22 In this case, the court believed that the restrictions
were justified because the disclosure of the classified information “might constitute a particularly
disastrous security breach—one that, perhaps, might place lives in danger.”23 Furthermore, the
Second Circuit found that the restrictions were limited and carefully tailored because they
permitted cleared defense counsel to discuss the “relevant facts” with the defendant.24
Discovery
CIPA authorizes the court to permit the government to propose redactions to classified
information provided to the defendant as part of discovery. Alternatively, the court may permit the
government to summarize the classified information, or to admit relevant facts in lieu of
providing discovery. The court may permit such procedures if the government submits a written
statement explaining why the defendant is not entitled to the redacted information. The statement
may be viewed by the court ex parte and in camera.25 The mechanics of discovery in federal
criminal litigation are governed primarily by the Federal Rules of Criminal Procedure (FED. R.
CRIM. P.). These rules provide the means by which defendants may request information and
evidence in the possession of the prosecution, in many cases prior to trial.
Brady and Jencks Material
There are two important classes of information that the prosecution must provide, if requested by
the defendant: specifically Brady material and Jencks material. Brady material, named after the
seminal Supreme Court case Brady v. Maryland,26 refers to information in the prosecution’s
possession which is exculpatory, or tends to prove the innocence of the defendant. For example,
statements by witnesses that contradict or are inconsistent with the prosecution’s theory of the
case must be provided to the defense, even if the prosecution does not intend to call those
witnesses. Prosecutors are considered to have possession of information that is in the control of
agencies that are “closely aligned with the prosecution,”27 but, whether information held
exclusively by elements of the intelligence community could fall within this category does not
appear to have been addressed.28
22 Id. at 127 (citing Perry v. Leeke, 488 U.S. 272 (1989) (holding that prohibiting communication between defendant
and his attorney during 15 minute recess to avoid “coaching” of testimony did not violate defendant’s right to
assistance of counsel).
23 Id. at 128 (internal quotation marks and punctuation omitted).
24 Id.
25 18 U.S.C. app. 3, § 4.
26 Brady v. Maryland, 373 U.S. 83 (1963) (holding that due process requires prosecution to turn over exculpatory
evidence in its possession).
27 United States v. Brooks, 966 F.2d 1500, 1503 (1992).
28 But, see United States v. Libby, 429 F. Supp. 2d 1 (D.D.C. 2006) (in a prosecution involving the unauthorized
disclosure of classified information, the CIA was closely aligned with special prosecutor for purposes of Brady based
(continued...)
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Jencks material refers to written statements made by a prosecution witness who has testified or
may testify. For example, this would include a report made by a witness called to testify against
the defendant. In the Supreme Court’s opinion in Jencks v. United States,29 the Court noted the
high impeachment value a witness’s prior statements can have, both to show inconsistency or
incompleteness of the in-court testimony. Subsequently, this requirement was codified by the
Jencks Act.30
The operation of Jencks and Brady may differ significantly in the context of classified
information. Under § 4 of CIPA, which deals with disclosure of discoverable classified
information, the prosecution may request to submit either a redacted version or a substitute of the
classified information in order to prevent harm to national security.31 While the court may reject
the redacted version or substitute as an insufficient proxy for the original, this decision is made ex
parte without the defendant’s input. Classified information that is also Jencks or Brady material is
still subject to CIPA and may be provided in a redacted or substituted form.32
Depositions
In some cases, the issue may not be the disclosure of a document or statement, but whether to
grant the defendant pre-trial access to government witnesses. In United States v. Moussaoui, one
issue was the ability of the defendant to depose “enemy combatant” witnesses who were, at the
time the deposition was ordered, considered intelligence assets by the United States.33 Under the
FED. R. CRIM. P., a defendant may request a deposition in order to preserve testimony at trial.34 In
Moussaoui, the court had determined that a deposition of the witnesses by the defendant was
warranted because the witnesses had information that could have been exculpatory or could have
disqualified the defendant for the death penalty.35 However, the government refused to produce
the deponents, citing national security concerns.36
(...continued)
on the free flow of other documents between the CIA and the prosecutor).
29 Jencks v. U.S., 353 U.S. 657 (1957) (holding that, in a criminal prosecution, the government may not withhold
documents relied upon by government witnesses, even where disclosure of those documents might damage national
security interests).
30 Codified at 18 U.S.C. § 3500. The Jencks Act provides definitions for so-called “Jencks material” and requires
disclosure of such material to the defense, but only after the witness has testified.
31 18 U.S.C. app. 3, § 4.
32 See United States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002) (holding that in camera examination and redaction of
purported Brady material by trial court was proper).
33 United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), cert. denied, Moussaoui v. U.S., 544 U.S. 931 (2005).
Moussaoui was prosecuted for his involvement in the conspiracy to commit the terrorist attacks of September 11, 2001.
While the U.S. Court of Appeals for the Fourth Circuit held that CIPA did not apply to the question of whether
Moussaoui and his standby counsel would be allowed to depose enemy combatant witnesses, United States v.
Moussaoui, 333 F.3d 509, 514-15 (4th Cir. 2003), both the district court and the Fourth Circuit looked to CIPA for
guidance when considering the question, see 382 F.3d at 471 n. 20 and accompanying text. Further litigation of these
issues was rendered moot when Zacarias Moussaoui subsequently entered a guilty plea.
34 FED. R. CRIM. P. 15(a). The court should permit the deposition if there are exceptional circumstances and it is in the
interest of justice.
35 Moussaoui, 382 F.3d at 458, 473-475.
36 Id. at 459.
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In light of this refusal, the Fourth Circuit, noting the conflict between the government’s duty to
comply with the court’s discovery orders and the need to protect national security, considered
whether the defendant could be provided with an adequate substitute for the depositions. The
court also noted that substitutes would necessarily be different from depositions, and that these
differences should not automatically render the substitutes inadequate.37 Instead, the appropriate
standard was whether the substitutes put the defendant in substantially the same position he
would have been absent the government’s national security concerns.38 Here, the Fourth Circuit
seemed to indicate that government-produced summaries of the witnesses’ statements, with some
procedural modifications, could be adequate substitutes for depositions.39
Admissibility of Classified Information
CIPA provides the government with an opportunity to request a hearing to determine the use,
relevance, or admissibility of any classified information that may be disclosed at trial. This
hearing may be conducted in camera if the Attorney General certifies that a public proceeding
might result in disclosure of classified information.40 Before the hearing, the government may be
required to give the defendant notice of what classified information is at issue and its relevancy to
the charges against the defendant.41
Substitutions
If the court finds that the classified information is admissible and authorizes its disclosure at trial,
the government may request that a substitute for the information be used instead.42 After a hearing
on the substitute, the court shall permit the substitute if it would give the defendant substantially
the same ability to make his defense.43 This hearing may be held in camera at the request of the
Attorney General, who may also submit an ex parte affidavit explaining the government’s
position.44
If the substitute is rejected by the court, disclosure of classified information may still be
prohibited if the Attorney General files an affidavit with the court objecting to disclosure.45
However, if the Attorney General files such an objection, the court may dismiss the indictment;
find against the government on any pertinent issue; strike testimony; or take any other action as
may be appropriate in the interests of justice.46
37 Id. at 477.
38 Id.
39 Id. at 479-483. The precise form of the deposition substitutes is unclear as significant portions of the Fourth Circuit’s
opinion dealing with the substitute were redacted.
40 18 U.S.C. app. 3, § 6(a).
41 18 U.S.C. app. 3, § 6(b).
42 18 U.S.C. app. 3, § 6(c).
43 18 U.S.C. app. 3, § 6(c)(1).
44 18 U.S.C. app. 3, § 6(c)(2).
45 18 U.S.C. app. 3, § 6(e)(1).
46 18 U.S.C. app. 3, § 6(e)(2).
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Confrontation Clause and the Silent Witness Rule
In some cases, the use of these procedures can also implicate constitutional concerns. As
described above, there may be instances where disclosure of classified information to the
defendant would be damaging to the national security. In these instances, the prosecution may
seek to present evidence at trial in a manner that does not result in disclosure to the defendant.
One proposed scenario might be the physical exclusion of the defendant from those portions of
the trial, while allowing the defendant’s counsel to remain present.47 However, such proceedings
could be viewed as unconstitutionally infringing upon the defendant’s Sixth Amendment right to
confrontation.48
Similar confrontation issues may be raised by use of the “silent witness rule,” a procedure that
may be offered by the government as a substitution for classified information that would be
otherwise admissible in a criminal defendant’s trial.49 Under this procedure, a witness whose
testimony may include classified information will respond to questions by making references to
particular portions of a classified document. The classified document may be made available to
the parties, the court, and members of the jury. However, it is not made available to members of
the public that may be in the gallery of the court. In this way, the witness may testify without
disclosing classified information to members of the public at large.
The use of the silent witness rule may violate the defendant’s right to confront the evidence used
against him if the defendant is not allowed to personally review classified information in the same
manner that it is made available to the jury. For example, in United States v. Abu Ali, the trial
court permitted the prosecution to use the silent witness rule, while only providing the defendant
and uncleared counsel with a redacted version of the document.50 In contrast, the members of the
jury were allowed to hear the testimony using an unredacted version of the same document. The
Fourth Circuit subsequently held this procedure unconstitutional, stating:
If the government does not want the defendant to be privy to information that is classified, it
may either declassify the document, seek approval of an effective substitute, or forego its use
altogether. What the government cannot do is hide the evidence from the defendant, but give
it to the jury. Such plainly violates the Confrontation Clause.51
The use of the silent witness rule for selected pieces of classified evidence has been approved by
courts under CIPA where its use has not raised Confrontation Clause issues.52 However, a
defendant’s right to a public trial, may also be implicated by the broad use of the silent witness
47 For example, procedures under the military commissions established by presidential order may have permitted
defendants from being excluded from proceedings. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 168 (D.D.C. 2004)
(granting writ of habeas corpus and describing potential procedures under military commissions established by
Presidential order); rev’d, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005); rev’d and remanded, Hamdan v.
Rumsfeld, 548 U.S. 557 (2006) (holding that military commissions did not comply with the Uniform Code of Military
Justice or the Geneva Conventions).
48 See Hamdan v. Rumsfeld, 548 U.S. at 634 (Stevens, J., plurality opinion) (stating that “an accused must, absent
disruptive conduct or consent, be present for his trial and must be privy to the evidence against him”).
49 See, e.g., U.S. v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008), cert. denied, Ali v. U.S., 129 S. Ct. 1312 (2009); U.S. v.
Zettl, 835 F.2d 1059 (4th Cir. 1987), cert. denied, Zettl v. U.S., 494 U.S. 1080 (1990).
50 U.S. v. Abu Ali, 528 F.3d at 253.
51 Id. at 255 (the defendant’s conviction was upheld because the violation was considered harmless error). Id. at 257.
52 See, e.g., U.S. v. Zettl, 835 F.2d at 1063. (implicitly approving of use of silent witness rule for all classified
information except with respect to the information that defendants were charged with unlawfully disclosing).
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rule if the effect of the rule would be the exclusion of the public from substantial portions of the
trial.53
Author Contact Information
Edward C. Liu
Todd Garvey
Legislative Attorney
Legislative Attorney
eliu@crs.loc.gov, 7-9166
tgarvey@crs.loc.gov, 7-0174
53 See U.S. v. Rosen, 487 F. Supp. 2d 703 (E.D. Va. 2007) (use of silent witness rule for entire mass of classified
information without case-by-case justification would effectively close trial).
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