Pre-preferral

militarydefenselawyers410At this stage of the proceeding, the government should comply as closely as possible with the procedures outlined in the Navy Code 17 publication, The Judge Advocate’s Handbook for Litigating National Security Cases. In particular, the government should:

  1. Notify higher headquarters. AR 27-10, para. 2-7a requires an SJA to coordinate with OTJAG, Criminal Law Division and OTJAG, Operational Law Division prior to preferral of charges in cases that have national security implications.
  2. Request a classification review of the evidence.
  3. Contact the OCA (and often, multiple OCAs) for a determination as to what evidence may be disclosed at trial.
  4. Establish security procedures, identify security assistance personnel, and plan all
    aspects of a trial involving classified evidence.
  5. Make charging decisions based on OCA willingness to disclose certain
    information.
  6. Note that speedy trial implications still exist in classified information cases. The
    discussion to RCM 707(c) indicates that a military judge can grant delays in
    order to give counsel time to prepare for complex cases, to obtain appropriate
    security clearances or gain time to declassify evidence. However, the
    reasonableness standard applies, and it is worth noting that the convictions of the
    accused in the “Yellow Fruit” cases were all overturned on appeal for speedy
    trial violations. See United States v. Longhofer, 29 M.J. 22 (CMA 1989)
    (rejecting proposed rule that speedy trial clock doesn’t start in classified cases
    until all participants have security clearances and applying instead a
    reasonableness test for measuring the delay); United States v. Duncan, 34 M.J.
    1232 (ACMR 1992) (holding that complex prosecution involving coordinated
    efforts between DOJ and DOD did not render reasonable the 303 days of pretrial
    delay for one set of charges and 176 days for another); United States v. Byard, 29
    M.J. 803 (ACMR 1989) (holding that the government did not exercise due
    diligence in obtaining the accused’s financial records and therefore could not
    exclude the time it took to obtain them).

Notify higher headquarters

Request a classification review of the evidence