Classified Information Procedures Act
- Nature of the “Privilege.” CIPA establishes procedures for the protection of
classified national security information at all stages of a proceeding, to include discovery. CIPA does not, however, create an evidentiary privilege; indeed, the
legislative history of CIPA indicates that it was not intended to alter existing standards for determining relevance and admissibility. See United States v. Smith, 780 F.2d 1102 (4th Cir. 1985) (favorably quoting a lower court for the
proposition that CIPA is merely a procedural tool requiring a pretrial court ruling on the admissibility of classified evidence).
- Much broader than the state secrets privilege.
- Recognizes the power of the executive branch to determine that public
disclosure of classified evidence will not be made in a criminal trial.
- Outlines procedures to protect against threat of disclosure or unnecessary
- Requires the defendant to give notice of intent to reveal classified
information as part of the defense.
- Gives several options to government:
- Seek a ruling that some or all of the information is immaterial.
- Move for substitution of non-sensitive summary information.
- Move for redaction of sensitive information.
- Admit facts sought to be proven.
- If government is unwilling or unable to disclose, court may dismiss
charges or provide appropriate relief.
Claiming the Privilege. CIPA contains a number of specific sections for
determining whether classified evidence or substitutes are relevant and
admissible at trial. If a court concludes under CIPA that classified evidence is
relevant at trial, the government may still be able to claim a privilege and
withhold the evidence. For example, in United States v. Smith, the defendant was
charged with several counts of espionage that occurred when he worked for the
Army Intelligence Security Command (INSCOM). In his defense, he argued that
he had turned material over to the Russians under the direction of two men whom
he believed to be CIA agents as part of a double-agent operation. At trial, he
wanted to introduce classified evidence to support his claim. The district court
found the evidence admissible, but the 4th Circuit reversed, holding that the
district court should have applied a qualified privilege similar to the common law
informer’s privilege recognized in Roviaro v. United States, 353 U.S. 53. Smith,
780 F.2d at 1106-07. The key is that CIPA now permits the government to
claim its privilege prior to trial. See Smith, 780 F.2d at 1109.