National Security prosecutions and graymail

Overview of national security prosecutions and graymail (see Classified evidence in a court martial):

  • militarydefenselawyers244“Graymail” occurs when a criminal defendant, whether for legitimate reasons or otherwise, threatens to disclose classified information during the course of a trial hoping
    that the government will forego prosecution rather than see the information disclosed.
  • There are two competing values at play in every prosecution involving classified or national security information:
  1. The accused’s right to a fair trial;
  2. The government’s need to protect from disclosure national security information that might be required for the trial.
  • Classified information is potentially relevant at trial under three primary circumstances:
  1. The charges are related to the improper handling of classified information.
    Examples of such charges include the following:

    1. Art. 92, Failure to Obey Order or Regulation. This would apply to
      instances of mishandling classified information. See, e.g., U.S. Dep’t of
      Army, Reg. 380-5, Department of the Army Information Security
      Program para. 1-21 (29 Sep. 2000).
    2. Art. 92, Dereliction of Duty.
    3. Art. 106a, Espionage.
    4. Art. 134, The General Article. Would pertain to violations of federal
      statutes not specifically contained in the UCMJ. For examples of these
      statutes and sample specifications, see U.S. Dep’t of the Navy, Office of
      the Judge Advocate General, National Security and Intelligence Law
      Division (Code 17), The Judge Advocate’s Handbook for Litigating
      National Security Cases: Prosecuting, Defending and Adjudicating
      National Security Cases, Chapter 8 (2002) [hereinafter Code 17
      Handbook].
    5. Art. 104, Aiding the Enemy.
    6. Art. 106, Spies.
  2. The classified information may be essential in establishing an element of or
    defense to a charge or specification. For instance, in United States v. Schmidt, 60
    M.J. 1 (2004), the appellant was charged with dereliction of duty for failing to
    exercise appropriate flight discipline and to comply with rules of engagement and
    special instructions in an air-to-ground bombing incident that caused the deaths
    of several Canadian soldiers in Afghanistan. The appellant was privy to
    classified information pertaining to his case. The military judge ruled, and the
    Air Force Court of Criminal Appeals affirmed, that the appellant could not
    discuss the classified aspects of his case with his civilian defense counsel (who
    eventually obtained an interim security clearance) without submitting a request
    through the trial counsel. The CAAF vacated the AFCCA opinion and reversed
    the ruling of the military judge, holding that MRE 505 does not require an
    accused to engage in adversarial litigation with the government as a precondition
    to discussing potentially relevant information pertaining to the case that is
    already in the appellant’s knowledge or possession.
  3. Classified evidence is somehow relevant to the discovery process.

The accused’s right to a fair trial

Art. 92, Dereliction of Duty