IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
[filed March 5, 2001]
UNITED STATES OF AMERICA ) ) CRIMINAL NO. 01-185-M v. ) ) ROBERT PHILIP HANSSEN, )
The United States of America, by and through its undersigned attorneys, hereby moves this Court to enter a Protective Order pursuant to Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. III (1994) (CIPA); the Security Procedures Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information (reprinted following CIPA Section 9) ; Rules 16(d) and 57 of the Federal Rules of Criminal Procedure; the ordinary principles of contract law; the general supervisory authority of the Court; and in order to protect the national security, which Protective Order will establish procedures necessary for the handling of classified information by the parties in this case so as to prevent unauthorized disclosure of such information. In support thereof, the United States states as follows:
GOVERNMENT'S MOTION FOR PROTECTIVE ORDER AND INCORPORATED MEMORANDUM OF LAW
1. The Defendant, ROBERT PHILIP HANSSEN, was arrested on February 18, 2001, on a Criminal Complaint charging him with espionage and conspiracy to commit espionage, in violation of 18 U.S.C. Sections 794 (a) and (c). He has remained detained since his arrest, and the government will be seeking his continued detention pending trial.
2. HANSSEN was employed as a Special Agent of the Federal Bureau of Investigation from 1976 until after his arrest in the instant case. During that entire time, and in connection with his assigned duties, HANSSEN held security clearances and was given authorized access to information classified up to and including TOP SECRET SCI levels.1 In connection with those security clearances, the defendant received periodic briefings and indoctrinations in the proper handling and use of classified information, and he signed agreements in which he acknowledged his understanding of the rules and regulations governing the handling and use of classified information, and agreed to abide by them.
1 "TOP SECRET" information is certain information the disclosure of which could be reasonably expected to exceptionally grave damage to the national security. Exec. Order No. 12958 §1.3 (a). "SCI" refers to "Sensitive Compartmented Information", which is deemed so sensitive that access to it must be restricted to a limited number of persons among those holding the appropriate clearance level.3. The Complaint alleges that HANSSEN engaged in a 15-year-long conspiracy in which he made unauthorized communication of classified information to officers of the intelligence services of the Union of Soviet Socialist Republics ("Soviet Union") and its successor state, the Russian Federation ("Russia"). The prosecution of this case will require that the government provide defense counsel with access to certain classified information. The government has agreed to produce a substantial amount of such classified information to the defense in pre-indictment discovery.
4. The unauthorized disclosure of classified information in the possession of HANSSEN before his arrest, and of classified information that the government will make available to defense counsel, can reasonably be expected to cause up to exceptionally grave damage to the national security of the United States, and to adversely affect foreign relations.
MEMORANDUM OF LAW
The Classified Information Procedures Act (CIPA), 18 U.S.C. App. III, provides procedures designed to protect the rights of the defendant while minimizing the associated harm to national security in cases where classified information may be relevant to the criminal proceedings. See United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998).
Section 3 of CIPA and Rules 16(d) (1) and 57 of the Federal Rules of Criminal Procedure authorize the Court to issue a protective order to prevent disclosure or dissemination of sensitive information that could compromise national security. See United States v. Rezaq, 156 F.R.D. 514, 523 (D.D.C. 1994); United States v. Musa, 833 F. Supp. 752 (E.D. Mo. 1993). The legislative history of CIPA reflects the type of protection that can be sought in a protective order to ensure that classified information is not improperly revealed and disseminated:The court is given authority to issue orders protecting against the disclosure of classified material in connection with the prosecution by the United States. . . . The details of each order are fashioned by the trial judge according to the circumstances of the particular case. The terms of the order may include, but need not be limited to, provisions: (1) prohibiting the disclosure of the information except as authorized by the court; (2) requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed; (3) requiring controlled access to the material during normal business hours and at other times upon reasonable notice; (4) requiring the maintaining of logs recording access by all persons authorized by the court to have access to the classified information in connection with the preparation of the defense; (5) requiring the making and handling of notes taken from the material containing classified information; and (6) authorizing the assignment of government security personnel and the provision of Government storage facilities. Punishment for violation of a protective order would be a contempt of court.S. Rep. No. 96-823, reprinted in 1980 U.S. Code Cong. & Ad. News 4294, 4299 (96th Cong. 2d Sess.).
The purpose of CIPA is to minimize threats by the defendant to disclose classified information in the course of litigation by requiring rulings, before trial, on the admissibility of such information. See Id. Such threats can arise in various circumstances, such as the following: (1) in pretrial discovery the defendant pressures the government to release classified information the threatened disclosure of which might force the government to abandon the prosecution; (2) the government expects to disclose classified information in the prosecution, and endeavors to restrict the dissemination of the information; and (3) the defendant has acquired classified information before the initiation of prosecution and seeks to disclose such information during the litigation. See United States v. Pappas, 94 F.3d 795, 799-800 (2d Cir. 1996). Section 3 of CIPA provides that, on motion of the government, the court must issue a protective order to guard against the disclosure of classified information disclosed by the government to the defendant during criminal litigation. See Id. at 800. The legislative history of CIPA makes it clear that Congress intended Section 3 protective orders to apply to the defendant's previously acquired information, and may prohibit disclosure of such information in connection with the trial of the case. See Id.
To the extent that the defendant himself does not need to know classified information to effectively assist in his defense, a protective order issued pursuant to CIPA may prohibit counsel for the defendant from disclosing classified information to the defendant that has been provided by the government in discovery. See United States v. Rezaq, 156 F.R.D. at 524.
The secrecy agreements signed by the defendant in connection with his employment by the Federal Bureau of Investigation are an appropriate exercise of the Executive Branch's statutory mandate to protect intelligence sources and methods from unauthorized disclosure. See Snepp v. United States, 444 U.S. 507, 510 n.3, 100 S. Ct. 763, 766 n.3 (1980) (regarding the Central Intelligence Agency). The government may seek court intervention to enjoin the defendant from violating such agreements. See Id.; see also Agee v. Central Intelligence Agency, 500 F. Supp. 506 (D.D.C. 1980). Enforcement of the secrecy agreements signed by the defendant is supported under ordinary principles of contract law. See United States v. Pappas, 94 F.3d at 801-02.
Finally, although the above-described procedures of CIPA do not expressly apply until the time the defendant has been indicted, it is respectfully submitted that the Court has the inherent administrative authority to extend their application to the current pre-indictment phase of this case, in the interests of justice.
WHEREFORE, the government respectfully moves that the Court issue the attached Protective Order.
HELEN F. FAHEY
UNITED STATES ATTORNEY
Randy I. Bellows
Justin W. Williams
Assistant United States Attorneys
Laura A. Ingersoll
Senior Trial Attorney
Internal Security Section
U.S. Department of Justice