The Right to a Fair Trial in Criminal Cases Involving the Introduction of Classified Information

Author:by Major Christopher M. Maher

    In the military, offenses involving the introduction of classified information' are tried using special procedures.2 This article exam-ines the fairness of the umque procedures applicable to classified information cams

    These cases frequently became the focus of attention in the press Often involving espionage. they arouse curiosity, and then anger Because of the threat posed to national security, espionage and related offenses carry with them the maximum penalty of death.4 Confine. rnent for life and sentences of twenty yeam are not uncommon." As a result, counsel often find themselves under the magnifying glass of offieml and eublic mxtinY.

    United States

    Y Sobler,301FId23612dClr~,i~rfdonzid.37OUS 944'19621,liipientencpr United

    Stales Y Johnson 15 M J 676 IA F C M R 19831 lthmy year amtenier, United States Y Dobr 21 C M R 451 IABR 19861 Ilwenty )ear bentenc~i

    'United Stater \ Walker. 796 F 2d 43 \4th Cir 19861 lliie ientence,,

    Despite all the public attention, little has been written on the procedures to follow when trying cases mvolvmg classified information This article will focua on the constitutional problems associated with government efforts to protect classified information from unauthor.,zed disclosure while trying to use that Infoormation at trial.'

    To guard classified information from unauthorized disclosure, the government mag refuse to grant defense counsel a security clearance and access to classified information Second, the gorernment may claim that the disclosure of classified information LS privileged from

    Lastly. the government may seek to close sessions of the courts-martial from the public.10

    On the other hand the accused is guaranteed the nght to a fair tnal This include8 the nght to B speedy, public tnal;" the right to effective assistance of co~nsel,'~the right to discover ev~dence'~ and

    compel witnesses to testify for the defense." and the nght to testify ~n one's own behalf


    "on-Deparrmeni of Defense intelligence activities can be remarkably frunfraring

    Lady, coordmatmn with companmented intelligence activ~f~rsand partlcularlg

    'Sei Unmd States v %chis. a C hl A 119, 23 C M R 343 ,1957, pM~l

    R Ei,id SO5

    US Conbt amend VI. Manual for Courta-Mamal. United States, 1984 Rule for

    "Gideonv Wamanght.372US 335 19638 Pavellv Alabama 287US 45119321 'R C 11 701 'Dlrcouer)l nee United States v Apxs 427 U S 97 ,1976, Unlred 'US Consr amend VI, R C M 703 #Production of Wlmeraes and Evidence

    Camts-Yartisl 707 [Speedy Trial, lhereinafrer R C \I I, R C hl 806 (Pubhe Tnal)

    Smwi I

    Brady. 373 U 5 83 819631


    This article contends that existing procedures for the trial of cnmmal cam involving classified information are inadequate and unfair to both the accused and the government. In particular, the procedures leave substantial doubt a8 to whether an accused will recewe a faalr trial m case6 involving classified information

    First, existing military precedent concerning granting any defense counsel access to classified information is unreasonable and should be judmally reversed.

    Second, the notice requirement imposed on the defense by Military Rule of Evidence 505, "Clasmfied Information," 1s constitutionally defective This article proposes that the President amend the Rule to conform with the reciprocal disclosure requirements of the Classified Information Procedures Act.I5

    Third, while Military Rule of Evidence 505 appears to strike a balance between the interests of an accused soldier and the interest ofthe government in preserving state BecL-ets, this balance is illusory. There 16 really no meaningful way for an accused soldier to challenge colorable claims of privilege or government motions to close the proceedings from the public for reasons of national security Mareaver, government use of ex parte, m camera affidavits to support claims ofprivilege and motions to close the proceedings make it unlikely that meaningful standards will develop. This article proposes prohibiting or drastically limiting the use of ex parte affidavits to support clams of privilege.

    Lastly, to the extent classified information must be disclosed at trial, this article will examine the circumstances under which trials may be closed to the pubhe Keeping in mind that the Supreme Court has failed to address any of these issues in a criminal case, the article will necessarily focus on Military Rule of Evidence 506, "Classified Information," and its civilian counterpart, the Classified Information Procedures Act


    The right to the assistance of defense counsel is an essential Lngredient of a fair trial.16 This nght to counsel is an integral part of

    "IS U S C app $$I-16 (1982)

    (Classified lnformatmn Procedures Act1 [heremafter "Powell Y Alabama, 287 U S 45.69 (1932) The nrth amendment provides "In all to have the Assistance of

    ClPAlcriminal Prmecutms. the accused ahall enjoy the n8ht Counsel far h a defence " U S Conat amend VI.

    any court-martml In fact, accused soldiers enjog far greater rights to defense counsel than do civilians similarly aecused.18 Irrespective of indigence, the Uniform Code of Military Justice guarantees accused soldiers the right to be represented by military defense counsel free of charge" or by civilian counsel provided by accused at no expense to the government'0 Additionally, at general and special couns-martial, soldiers enjoy the Sixth Amendment right to counsel Thus, accused have the right to effective assistance of counsel at every stage of a prosecution,21 ineluding the nght to have counsel present during questioning by military investigators

    Yet, for the accused whose alleged misconduct relates to classified Information, choosing a military or civilian coun~el i d t quite that simple. Before the accused can disclose classified matters to a defense attorney. the accused must ennure that the attorney has the requisite personnel security clearance. and has been granted access 24

    The granting of access 1s separate and distinct from the granting af a security clearance.'6 Generally, when the government determines that an individual can be trusted with clasahed Information. an in-


    dividual receives a security clearance.26 Access LS the opportunity or ability for individuals to obtain knowledge of classified information The commander concerned decides whether an individual's duties

    Where an aceused seeks the assistance of the United States Army Tnal Defense Service, finding a counsel with the required clearances and access should not be too much of a problem The Trial Defense Service will take steps to ensure that a counsel with the requisite clearances and access LS made available for consultation or. in the event charges have been preferred, LS detailed to represent the accused

    Similarly, where an accused requests mdnidual military counsel, who has or 1s eligible for a security clearance and access. there again 1s little difficulty 29 Tension between an accused's statutory and constitutional nght to counsel ofhis own selection versus the interest af the government in protecting classified infarmatton develops when the aceused selects a counsel who 18 a security nsk

    requre access.28


      The possibility of an accused selecting a counsel who presents a security risk IS indeed real. Depending on the clearance required to review the classified mformatmn, the defense attorney's background for the past fifteen years may be investigated Defense attorneys who have foreign spauses with foreign citizenship. or relatives in Vietnam or other Communist countneP may be denied a security clearance.3a Also, thoae counsel who, while in college, took

      B year off to travel and had no permanent residence may hkeuise

      not receive a security clearance Similarly, a defense counsel with a

      2aAR 380.5, para 7.101 There are three r)pei of security clearan~eP~confidentia1 "AR 604-5 oars 1-300secret, and top aecrer AR 604-5 sec 4

      "AR 380-5, bra 1-102 Where renritire campanmenfed Information I$ concerned eligibility far aceem 15 determined by the Commander, L

      S krm) Central Personnel

      Securitv Clearance Famhfv or the Aiimtanf Chief a1 Staff far lntellieenee Headquart& Department ofthe Army Id, para 1-102'd# & app F


      "BU see supm note 28

      'OAR 380-6, para 3-601 & app CihlJmiedStateiv Sanano.9hl J 221 \C 41 A 1980, lrailarsoughtto havePhilippine laryer reprerent himi, United State. ,

      Harni 9 C hl A 493, 26 C M R 273 ,19581 lBritish solicitor reprepenred h r

      Force sergeanti, United States Y Easter 40 C M R 731 IAC M R 1969) West German 1au)erreprelented soldier8 Unired Sues v George.35 C M R 801 $A F B R 1965, iPhillpplne attorney represented airmen>

      "See AR 604-5,epp H

      i'Id app 1-3

      poor credit rating or deeply in debt may be deemed a securityOf course, any history of mental illness, drug or alcohol problems past or present affiliations with homosexuals, or certain subversive organizations can result in denial of a security clearance In view of the detailed investigation conducted m connection with getting a security clearance, it 1s indeed possible that an accused might select a counsel whose request far a security clearance would be denied Moreover, to force the is~ue,accused might intentionally choose to associate civilian or individual military counsel who won't be cleared

      This brings u8 back to the question, what abaut the accused's right to counsel? At first blush. the plain answer would seem to be that the government should not be required to grant a clearance to JUSt any attorney selected by the accused. By regulation no one LS entitled to a clearance regardless of hia position or duties Only a few courts have addressed the ISSUB

      In Cnited States u. Joll~ff,~'tned under the Classified Information

      Procedures Act.3B the defense objected to being required to have coun. sel submit to the aecunty clearance process The...

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