Sword or Shield? The Government's selective Use of its Declassification authority for Tactical Advantage in Criminal Prosecutions

• Author: Joshua L. Dratel
• Position: Criminal Defense Lawyer in New York City.
• Pages: 171-189

Page 171

Joshua L. Dratel is a criminal defense lawyer in New York City. He is the former President of the New York State Association of Criminal Defense Lawyers and has been a defense attorney in many cases alleging terrorism offenses and involving classified information and national security issues, including United States v. Usama Bin Laden, which is discussed in this article.

One of the principles underlying the Classified Information Procedures Act ("CIPA"),¹ which regulates the use of classified information in the context of federal criminal prosecutions, is that the classified status of any item of evidence or information shall not, by itself, deprive a defendant of access to that evidence or information, or, in turn, a fair trial. Notwithstanding this fundamental tenet, which is articulated in CIPA's legislative history and interpretive case law, the government's exclusive control over critical aspects of litigation and proceedings conducted pursuant to CIPA often undermines the statute's legislative intent. The government achieves this control by determining whether and what classified material to declassify in preparation for a criminal prosecution and trial, including a defendant's own communications intercepted pursuant to the Foreign Intelligence Surveillance Act ("FISA").²

The government may selectively declassify inculpatory evidence for use at trial, while, at the same time, deny the defense the ability to adequately prepare for a case by not declassifying exculpatory information. As a result, an essential objective of CIPA-that the existence of classified material in a criminal case not impair a defendant's Fifth and Sixth Amendment rights-is thwarted at the unilateral discretion of the government. The solution is to reform the procedures under which classified information is used in the context of criminal trials so that defendants, in preparing for trial, are not deprived of access to their own statements and communications.

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This solution will require not only amending CIPA but also harmonizing it with FISA, under which a defendant's electronic communications are most often intercepted, usually in a classified manner. In order to understand the need for CIPA reform and to appreciate fully the asymmetrical access to evidence that the government's declassification authority creates, first CIPA's purposes and applications must be reviewed. It is then important to evaluate the impermeability of the government's classification authority in the CIPA context, before proceeding to review the specific cases in which the government has exploited its declassification discretion in comparison to cases in which the government has not sought such advantage. This article will demonstrate that the aforementioned analysis can lead to only one conclusion: statutory reform is necessary in order to preserve CIPA and its objectives, and to put the government and the defense on equal footing regardless of whether information and evidence are classified.

I Cipa's History and Purposes

CIPA was enacted "to 'minimize the problem of so-called greymail-a threat by the defendant to disclose classified information in the course of trial-by requiring a ruling on the admissibility of the classified information before trial.'"³ In furtherance of that objective, CIPA provides procedures for informing the government of the classified information, prior to trial, which will be compromised by the prosecution.⁴

The prosecution of Lewis I. "Scooter" Libby presents the paradigmatic situation that the CIPA was designed to address. The defendant was fully aware of the nature and content of the classified information at issue. Indeed, the defendant was charged with lying about his disclosure of that very information.⁵ As part of his defense, Mr. Libby sought access to certain classified information in the government's possession Page 173 and indicated his intention to use that information, as well as other classified information already in his possession.

However, terrorism cases present very different situations and very different defendants than those for which CIPA (as a reaction to greymail) was designed. In terrorism cases, the defendant is not in possession of the classified information (unlike government officials charged with espionage offenses or other misconduct), and there is no chance that they will obtain the necessary security clearance to view classified materials. Thus, the greymail opportunities are minimized, if not eliminated altogether, since the defendant is not in a position to threaten disclosure of classified information other than that provided by the government in discovery.

CIPA was not intended to supplant ordinary discovery principles. Normal discovery⁶ and evidentiary⁷ rules apply to CIPA. Ultimately, CIPA is not supposed to put the defendant in a worse position than if the evidence was not classified. As the Seventh Circuit noted in United States v. Dumeisi, CIPA's fundamental purpose is to "protect and restrict the discovery of classified information in a way that does not impair the defendant's right to a fair trial."⁸ Indeed, explicit in CIPA's legislative history is the admonition that "the defendant should not stand in a worse position, because of the fact that classified information is involved, than he would without this Act."⁹

Consequently, as the Fourth Circuit pointed out in United States v. Fernandez,¹⁰ "[a]lthough CIPA contemplates that the use of classified information be streamlined, courts must not be remiss in protecting a Page 174 defendant's right to a full and meaningful presentation of his claim to innocence." Consistent with that mandate, CIPA also does not diminish the government's obligation to provide exculpatory material to the defendant in compliance with Brady v. Maryland.¹¹

Similarly, within the context of CIPA and classified information, a defendant retains Fifth and Sixth Amendment rights to a fair trial and to compulsory process.¹² More recently, courts have consistently held that CIPA should not operate as an impediment to a defendant's right to discoverable or exculpatory information, or more broadly, to a fair trial consistent with Fifth and Sixth Amendment standards.¹³

II The Asymmetrical Nature of the Government's Declassification Authority

The executive branch controls the scope of disclosure to a defendant through its power to decide what information is classified and what information will be declassified for purposes of the case. Consequently, this governmental power amplifies and adds to the general inequity created by CIPA in cases in which the defendant lacks knowledge of the classified information.

Regarding classification, it is widely recognized that "the Federal Government exhibits a proclivity for over-classification of information."¹⁴ Yet, under CIPA, the defense "cannot challenge this classification. Page 175 A court cannot question it."¹⁵ Thus, a defendant lacks recourse for assistance in penetrating the classification and declassification processes.¹⁶ The exclusive remedy is administrative, which is not only time-consuming but also leaves the determination to the executive branch. Any civil lawsuit seeking to reverse an administrative decision would certainly still be pending long after the criminal trial concluded.

Unfettered government discretion is often too great a temptation to exploit, as it permits the government to use its unreviewable classification authority as an offensive weapon, effectively placing voluminous amounts of critical evidence off limits to the defense.¹⁷ For example, a prosecutor can decline to seek declassification of critical evidence such as Page 17671 the intercepts of a defendant's own conversations, facsimile transmissions, or electronic mail, which are made pursuant to electronic surveillance authorized under FISA.¹⁸ As a result, it is more than just a coincidence that the government timely and effortlessly declassifies the FISA-intercepted communications it intends to introduce in evidence. Yet somehow, the government finds itself incapable of performing that task for the remainder of the interceptions, which comprise the overwhelming majority.¹⁹

However, the intercepts are often voluminous and in a foreign language, such as Arabic or Urdu. In United States v. Al-Hussayen,²⁰ the defendant's telephone conversations and e-mails, captured for a thirteen-month period pursuant to FISA warrants, comprised eighty-nine Page 177 CDs, virtually all in Arabic.²¹ The language of the tapes effectively placed the classified materials "off limits" to the defense since it was impossible to engage the services of an Arabic interpreter with the appropriate security clearance willing to relocate to Boise, Idaho, for an indeterminate period of time in order to translate the classified materials. Indeed, as of the time the case proceeded to trial, months after the filing of the initial indictment, the security clearance application of the Arabic interpreter retained by the defense was still pending. The defense was still awaiting clearance at the conclusion of the ten-week trial.

However, on the weekend prior to commencement of the Al-Hussayen trial, the government sought to blunt the obvious advantage it had gained by declassifying all of the CDs without any explanation of why that was not done earlier. Obviously...