Last week, prosecutors in the case of Thomas A. Drake, the former NSA official who is charged with unlawfully retaining classified information that he allegedly disclosed to a reporter, asked the court to hold a pre-trial conference on the use of the Classified Information Procedures Act (CIPA) in that case.
CIPA was passed by Congress in 1980 to regulate the disclosure of classified information in criminal prosecutions, such as espionage cases, and to prevent so-called “graymail,” in which a defendant threatens to release classified information in the hope of forcing the government to abandon the case.
In a nutshell, CIPA requires the defense to notify prosecutors and the court of any classified evidence it intends to introduce. Courts must then determine if the classified evidence is admissible. If so, the government may propose an unclassified substitution that does not involve classified information. But if the court finds that the unclassified substitution is inadequate to preserve the defendant’s right to a fair trial, and if the Attorney General objects to disclosure of the classified version, then the indictment may be dismissed.
Perhaps assuming that the judge (or the defense) was unfamiliar with the law, prosecutors in the Thomas Drake case filed a motion (pdf) explaining the meaning of each section of CIPA.
The purpose of their CIPA tutorial was “to inform the Court of the applicability of CIPA and its procedures to issues involving classified information that will arise before and during the trial of this case,” they wrote. See “Government’s Motion for Pretrial Conference Under Section 2 of the Classified Information Procedures Act,” May 5, 2010.
The development and early history of CIPA were reviewed by the Congressional Research Service in a March 2, 1989 report entitled “Classified Information Procedures Act (CIPA): An Overview.”
The use of CIPA to preserve defendants’ rights while protecting classified information in criminal trials presents a stark contrast with the absence of any comparable procedure in civil trials, particularly those in which the government invokes the state secrets privilege to prevent the use of classified evidence.
“For almost 30 years, courts have effectively applied [CIPA] to make criminal trials fairer and safer,” the Senate Judiciary Committee noted in a 2008 report on the pending State Secrets Protection Act. “Yet in civil cases, litigants have been left behind.”
“Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the Executive to have clear, fair, and safe rules,” the Judiciary Committee report said.
A legislative response to the problems posed by the unilateral use of the state secrets privilege by the executive branch remains to be accomplished.