Analyzing the constitutional tensions and applicability of Military Rule of Evidence 505 in courts-martial over United States service members: secrecy in the shadow of Lonetree.

• Author: Kastenberg, Joshua E.

The advent of the cold war brought concerns over classified national security information becoming public in criminal trials. The federal government, in response, enacted the Classified Information Procedures Act (CIPA) (2) in 1980. During the same time the CIPA was being finalized in Congressional conference, President James Carter provided the United States Military with a similar mandate to protect evidence. Rather than a creating a specific act, the executive branch provided the military a "privilege" mechanism to prevent disclosure in the Military Rules of Evidence (MRE), under rule 505. (3) From its inception until 1990, military prosecutors made little use of MRE 505. However, in United States v. Lonetree, (4) a court-martial was tasked with protecting sensitive information regarding Soviet-directed espionage. The trial court had to balance the inherently broader discovery rights of an accused against the need to protect information crucial to national security. (5) Since Lonetree, little analysis has occurred regarding the use of MRE 505. Yet, MRE 505 remains an important feature of military justice, just as CIPA does to federal law. Because military members may be prosecuted for the failure to control or maintain sensitive information, the future likelihood of MRE 505 being invoked by the government is almost certain. Indeed, in the past two years, military prosecutors in two high-profile cases, United States v. Yee, (6) and United States v. al-Halabi, (7) have invoked MRE 505's protections. Currently, with trials stemming from the abu-Gharib prisoner of war abuse investigation, and the overall "Global War on terrorism," knowledge of the parameters of MRE 505 will be important to all sides in the court-martial process.

This article analyzes MRE 505 in both a comparative and Constitutional context. Part I provides a procedural overview of both MRE 505, and its federal counterpart, CIPA, for protecting evidence vital to national security in the criminal court context. Both mechanisms for protecting sensitive information are analyzed for their efficiency from a prosecutorial perspective. A study of CIPA is also provided because of the lack of military case law and current analysis of MRE 505. CIPA and federal case law remain important in providing guidance on the parameters of protecting classified information in courts-martial.

Part II analyzes the defendant's twin Constitutionally-based rights to present a complete defense and to a public trial. MRE 505, impacts to some degree, these twin rights. The right to a public trial also bears importance as, on occasion, third parties assert this right.

Part III then reviews the legal framework of MRE 505 within the salient Lonetree case. Within the context of that case, particular attention is focused on two issues: the right of public access and the responsibility to protect classified evidence.

Part IV analyzes likely legal areas of future review. Continued analysis on the right of public access is important because there has been a trend toward increased media interest for military cases. (8) The responsibility to protect classified evidence is of importance, but for reasons that include an increased role of the military in combating terrorism in both overseas and potentially domestic operations, as well as other traditional reasons. Second, the issue of an accused's right to a present a complete defense will continue to affect the application of MRE 505 in trials. Finally, the right of an accused to choose defense counsel may be impacted by the application of MRE 505. While this article concludes the reasonable application of MRE 505 is constitutional, judge advocates and agency attorneys should analyze the possible impact both in the charging process and in the pursuit of justice. Likewise, potential defense counsel should be fully aware of the law, its impact on the accused's rights, and potential arguments for disclosure prior to trial.

Before proceeding however, a brief mention of the courts-martial process bears importance as persons familiar with federal criminal law may be unfamiliar with terminology used in the Uniform Code of Military Justice (UCMJ). (9) Courts-martial may be divided into three types: general, special, and summary. This breakdown is, in part, based on sentencing limitations. Because the military does not have mandated sentencing guidelines, sentencing occurs in a two dimensional context. Each offense possesses a jurisdictional ceiling on punishment. (10) However, the special and summary courts-martial forum further set a maximum ceiling. (11)

In military law, the terms indictment and defendant are not used. Instead of indictment, the term preferral is utilized. (12) However, these terms are not strictly synonymous. Likewise, instead of 'defendant,' the term 'accused' is used. (13) These terms are roughly synonymous in regard to the legal rights of charged persons. (14)

The charging process begins with preferral of charges against an accused. Any person subject to the UCMJ may prefer charges against an accused. (15) Where an enlisted general court-martial is contemplated, a preliminary investigation known as a UCMJ Article 32 investigation is held. (16) For all officers charged, an article 32 hearing is accomplished, as officers may on be tried in general courts-martial. (17) Although roughly akin to the grand jury process, there are substantial differences, not pertinent to this article. Should the charges be recommended either for a general court-martial or special court martial, the charges must be referred by a convening authority. (18) Once the charges are referred to a court-martial, an independent military judiciary becomes involved with discovery matters, scheduling, evidentiary rulings, and oversight of the case. (19)

I: Classified Information Procedure Act and MRE 505: Overview

1. CIPA

   The Supreme Court has both carved exceptions and recognized limits to a defendant's Constitutional rights. (20) Some of these rights might be viewed as impacting the traditional view of the right to a fair trial. (21) For instance, the right of individual liberty may become secondary in wartime where the government believes the individual to be dangerous to national security. (22) In criminal cases involving sexual abuse against children, there is no absolute Sixth Amendment confrontation clause right to confront the child witness in the presence of the defendant. (23) Likewise, in rape and sexual assault cases, mechanisms exist to protect the identity of the victim from the public. (24) In terms of national security related evidence, the importance of protecting such information against public view is balanced through CIPA.

   Passed by Congress in 1980, CIPA was designed to address a growing problem of graymail. (25) Graymail is a term describing a defendant's threat to expose classified intelligence through otherwise lawful procedural means during trial. (26) Graymail use in cases involving classified information is problematic for the government because it has dissuaded prosecution in some cases. (27) CIPA was not designed to provide prosecutors otherwise repugnant advantages over defendants. (28) Federal courts are obligated to watch for overzealous use of CIPA and do not always accept government proffers of necessity to protect classified evidence. For instance, in United States v. Fernandez, (29) the government appealed a trial judge's order to release classified information, or in the alternative, to dismiss charges against a defendant. (30) On prosecution appeal, the Fourth Circuit held the trial judge did not abuse his discretion in executing this order. (31) The trial judge reviewed the contested evidence and based his order on this review as well as the arguments of both parties. (32) He concluded that requirements of a fair trial, including the right to present a complete defense necessitated the release of evidence. (33)

   CIPA defines classified information as "any information or material that has been determined by the United States government pursuant to an Executive Order, statute, or regulation, to require protection against authorized disclosure for reasons of national security." (34) Likewise, national security is defined as "the national defense and foreign relations of the United States." (35) Neither of these terms have been found to be unconstitutionally vague. (36) CIPA permits any party, after an issue of indictment, to move the court for a pretrial conference "to consider matters relating to classified information that may arise in connection with the prosecution." (37) In this conference, the court must consider timing of discovery requests, the provision of notice requirements, and the procedure to determine the use, relevance, and admissibility, of classified information. (38)

   CIPA permits the prosecution to seek a protective order from the court. (39) This protective order is designed to prevent any classified information disclosed by the United States to a party in the criminal case. (40) The order is also intended to establish adequate procedures to protect classified information at all stages of the trial. (41) CIPA requires the appointment of a court security officer (CSO) to oversee the order. (42) The CSO is charged to insure classified information is properly handled while assisting both parties and the court in obtaining security clearances. (43)

   As noted above, CIPA was not designed to provide an advantage for the prosecution by limiting discovery. Indeed, Section 4 of CIPA balances the discovery fights of a defendant against the government's national security considerations. It permits the court to redact or delete classified items not relevant to an element of a specific defense. (44) It also permits the government to provide a summary substitute of information. (45) However, the government appears required to provide the court, in camera, with a complete copy of the evidence to insure...