IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal No. 96-CR-68-M (formerly No. CR-95-110-MH WDOK)
UNITED STATES OF AMERICA,
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS,
DEFENDANT McVEIGH'S MEMORANDUM TO THE COURT CONCERNING IMPLEMENTATION OF
THE CLASSIFIED INFORMATION PROCEDURES ACT
Defendant Timothy McVeigh submits this Memorandum to the Court as a
succinct guide and overview of the procedures and protocol under the
Classified Information Procedures Act, 18 U.S.C. App. III. Sections 1-16
I. BACKGROUND AND PURPOSE OF THE ACT
The primary purpose of CIPA is to limit the practice of "gray mail" by
criminal defendants. Gray mail refers simply to the threat by a criminal
defendant to disclose classified information during the course of a
trial. See Legislative History of Act, 1980 U.S. Code Cong. & Admin.
News 4294, 4295. The gray mailing defendant essentially presented the
government with a "Hobson's choice": either allowed disclosure of the
classified information or dismiss the indictment. See United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1363 (11th Cir. 1994).
The Hobson's choice was present prior to CIPA because the issue of
admissibility of the information occurred during the trial itself and
was usually made a public record during the arguments on its
admissibility. The procedural protections of CIPA protect unnecessary
disclosure of classified information. But CIPA does not restrict
admissibility of classified information; rather, it simply enables the
government to ascertain prior to trial the specific classified
information which the defendant possesses, or seeks to admit at trial,
so that the government can evaluate the effect of disclosure on national
security. See United States v. Pringle, 751 F.2d 419, 427 (1st Cir.
Thus, CIPA "is not intended to infringe on a defendant's right to a fair
trial or to change the existing rules of evidence in criminal
procedure." H.R. Rep. No. 831, 96th Cong., 2nd Session, pt. 2, at 3 1980
[cited in Richard P. Salgado, Government Secrets, Fair Trials, And The
Classified Information Procedures Act, 98 Yale Law Journal 427, 431
(1988)]. In the language of the Eleventh Circuit, the procedures simply
aid in informing the government of "the 'price the defendant asserts the
government will have to pay if the prosecution continues." Unite States
v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983).
Finally, it is explicitly recognized in the legislative history that the
practice of gray mail is not limited to unscrupulous or questionable
conduct by defendants, since wholly proper defense attempts to obtain or
disclose classified information may present the government with the same
"disclose or dismiss" dilemma. See 1980 U.S. Code Cong. & Admin. News,
4296-97. CIPA is merely a procedural tool requiring a pre-trial court
ruling on the admissibility of classified information. United States v.
Smith, 780 F.2d 1102, 1106 (4th Cir. 1985) (en banc).
1. Information Must Be Classified: CIPA only applies when classified
information is involved. See United States v. Panas, 738 F.2d 278, 285-
86 (8th Cir. 1984) (information at issue was never classified, so CIPA
does not apply); CIPA Section 1 (classified information defined). Since
1940, the primary method of classifying information has been through
Executive Order. Brian Z. Tamanaha, A Critical Review Of 7he Classified
Information Procedures Act, 13 Am. J. Cr. L. 277, 284 (1986). President
Reagan promulgated the current Executive Order on classified information
in mid-1982. See Executive Order No. 12,356, 3 C.F.R. 166-67 (1982),
reprinted in 50 U.S.C. Section 401 (1982). President Reagan's order
specifies which members of the executive branch are authorized to
classify information. There are currently three levels of
a) "top secret" meaning information, the unauthorized disclosure of
which reasonably could be expected to cause exceptionally grave damage
to the national security;
b) "secret" meaning information, the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the national
c) "confidential" information, the unauthorized disclosure of which
reasonably could be expected to cause damage to the national security.
2. Discovery of Classified Information: In order to prevail on a
discovery request for classified information pursuant to Rule 16 or
Brady, a defendant must cross the "low hurdle" showing that the
requested material is relevant to his case. United States v. Yunis, 924
F.2d 1086, 1095 (D.C. Cir. 1991). If this "low hurdle" is successfully
jumped, the court must determine whether government has asserted a
"colorable" claim of privilege. Id. If the government has asserted such
a claim, the defendant must show that the information would be helpful
to his defense. Id.
Should the government submit classified (or unclassified) documents to
the district court in camera ex parte in order to establish that the
documents are not material to the defense, then it is entirely
appropriate for the district court to allow the Defendant to submit in
camera ex pane an affidavit setting out in detail why the requested
information is material to preparation of the defense. United States v.
Clegg, 740 F.2d 16, 17 (9th Cir. 1984); see also United States v.
Poindexter, 698 F. Supp. 316, 321 (D.D.C. 1988) ("The court will hear
counsel for Defendant North at what may prove to be more than a single
in camera, ex parte oral presentation... for the sole... purpose of
being informed without disclosure to independent counsel, of the reasons
why he and his counsel consider the specific items of classified
information he is seeking... as relevant and material to his defense").
Note: There is a split of authority concerning the issue of whether an
additional balancing test is required when dealing with discovery and/or
admissibility of classified information. The issue is whether otherwise
relevant information which happens to be classified may be non-
discoverable or inadmissible because of its classified nature.1 As to
discovery and admissibility of classified information, some courts have
endorsed a balancing approach. See, e.g., United States v. Sarkissian,
841 F.2d 959, 965 (9th Cir. 1988).
Some courts have rejected a balancing approach and have instead applied
the general rules of admissibility under Rules 401-403. See, e. g.,
United States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995). Other
courts have declined to take position. See, e.g., United States v.
Yunis, 924 F.2d 1086, 1095 (D.C. Cir. 1991).
The issue is well-illustrated in a sharply divided en banc decision from
the Fourth Circuit. In a pre-trial hearing pursuant to CIPA concerning
the admissibility of classified information, the en banc Fourth Circuit
split 6-5 in holding that the defendant's right to prepare his defense
had to be balanced against the public interest in preventing the
disclosure of classified information, as under Roviaro v. United States,
353 U.S. 53 (1957) (recognizing a government privilege to protect
informants). United States v. Smith, 780 F.2d 1102, 1105 (4th Cir. 1985)
(en banc). The Fourth Circuit declined to establish a "rigid rule" for
the proper balance, stating that it would vary from case to case
depending upon the crime charged, how essential the information was to
the defense, and whether the information was merely cumulative or
corroborative. Id. at 1110. The Fourth Circuit held specifically that
the standard of admissibility for classified information "is at least
more restrictive than the ordinary rules of relevancy would indicate."
The dissenters in Smith, as well as the commentators, criticized the
majority for ignoring the fact that Congress specifically rejected a
bill that suggested the balancing approach of Roviaro. See Richard P.
Salgado, Government Secrets, Fair Trials, And The Classified Information
Procedures Act, 98 Yale Law Journal 427, 441 (1988). The courts are
split on the issue of a Roviaro balancing in a CIPA Section 6(a)
relevancy hearing. Compare United States v. Zenttl, 835 F.2d 1059 (4th
Cir. 1987) (balancing appropriate) and United States v. Smith, 780 F. 2d
1102 (4th Cir. 1985) (en banc) (same) with United States v. Juan, 776
F.2d 256 (11th Cir. 1985) (balancing inappropriate).
3. Protective Orders: If classified information is ruled discoverable,
the government make invoke Sections 3 and 4 of CIPA. Section 3 provides
that upon motion of the United States, the court shall issue a
protective order against disclosure of any classified information
disclosed by the government to the defendant. In addition, section 4
allows the court, upon a "sufficient showing" to authorize the
government to delete specified items of classified information from
documents made discoverable, to substitute summaries of information, or
to substitute a statement admitting relevant facts that the classified
information would tend to prove.
Motions by the government pursuant to Section 4 may be filed in camera
and under seal, but may not be filed ex parte. United Stales v. Rezaq,
156 F.R.D. 514, 526 (D.D.C. 1994). Because of the adversarial nature of
the proceedings, defense counsel should be entitled to inspect the
government's submissions. Id. Thus, upon reviewing the government's
submissions, defense counsel may file, in camera and under seal,
appropriate arguments that the government's submissions do not establish
a facial claim of privilege, or that they contain evidence material to
the defense, and thus may be disclosed even if classified. Id. Whether
or not the government's submissions are ex parte is within the
discretion of the court since section 4 states that the court "may"
permit such ex parte filings. However, as the court in Rezaq stated,
such parte filings are not required nor even favored. Id.
4. Notice By the Defendant: If classified information is provided to a
defendant, and a defendant reasonably expects to disclose classified
information at trial (or pre-trial proceedings), the defendant must
notify the government and the court in writing of his intention. Notice
must be given within the time specified by the court or, if no time is
specified, within 30 days prior to trial. CIPA Section 5(a). The notice
must specifically set out the classified information the defendant
believes he will rely upon in his defense. Id.; United States v. Smith,
780 F.2d 1102, 1105 (4th Cir. 1985) (en banc). Failure of the defendant
to file a proper notice may result in a court order precluding
disclosure of classified information. It may also prohibit the
examination of a witness concerning such information. Id. Section 5(b).
5. Hearing on "use, relevance or admissibility": Once a defendant has
given notice of intent to introduce classified information at trial, the
government may request a pre- trial hearing at which the court shall
determine the "use, relevance or admissibility" of classified
information that would otherwise be made during the trial or pre-trial
proceeding." CIPA Section 6. This hearing shall be held in camera if the
Attorney General certifies to the court that a public proceeding may
result in the disclosure of classified information. CIPA Section 6(a).
Section 6(b)(1) provides that before such a hearing is conducted
pursuant to a request by the government, the government must provide the
defendant with notice of the classified information at issue. The
government's notice must identify the specific classified information at
issue whenever that information previously has been made available to
the defendant. However, if the government has not previously made the
information available to the defendant in connection with the case, the
information may be described by generic category, and in such form as
the court may approve, rather than by identification of the specific
Finally, when the government requests a Section 6(a) hearing, the court,
upon request of the defendant, may order the government to provide the
defendant prior to trial "such details as to the portion of the
indictment or information at issue in the hearing as are needed to give
the defendant fair notice to prepare for the hearing." CIPA Section
Note: As discussed previously, the standard of admissibility of
classified information is unclear and the circuits are split. The
legislative history and the cases interpreting 6 of CIPA emphasize that
CIPA did not alter the existing standards for determining relevancy or
admissibility. In fact, Congress explicitly rejected a Department of
Justice suggestion that a more restrictive standard of relevance and
admissibility should be included under CIPA. See 1980 U.S. Code Cong. &
Admin. News at 4301-02; United States v. Smith, 780 F.2d 1102, 1111-13
(4th Cir. 1980) (en banc) (Butzner, J. dissenting).
The circuits are split as to the appropriate standard of admissibility.
Courts applying the Roviaro balancing test point out that Roviaro was
decided prior to CIPA and was thus an existing standard which CIPA was
not meant to change. See Smith, supra, at 1110. In contrast, other
courts have held that admissibility of classified information is
determined the same as any other potential evidence in a criminal case
pursuant to Federal Rules of Evidence 401-403. See, e.g., United States
v. Juan, 776 F.2d 256, 258 (11th Cir. 1985) (the district court may not
take into account the fact that evidence is classified when determining
its "use, relevance or admissibility.N); United States v. Wilson, 586 F.
Supp. 1011, 1013 (S.D.N.Y. 1983) (in making its rulings on
admissibility, the court is to disregard the fact that certain material
may be classified).
6. Alternatives to Disclosure: If the court determines that classified
information is admissible and relevant, then the government may move for
an order allowing, in lieu of disclosure, either a substitution of a
statement admitting relevant facts that the classified information
would- tend to prove, or a substitution of a summary of the specific
classified information. CIPA Section 6(c). The court is required to
grant such a motion if it finds that the statement or summary will
provide the defendant "with substantially the same ability to make his
defense as would disclosure of the specified classified information."
The court is also required to hold a hearing on the government's motion
to substitute and any such hearing must be in camera at the request of
the Attorney General.
The government may also elect, in conjunction with its request for
substitution, to submit to the court in camera and ex parte an affidavit
of the Attorney General certifying that the disclosure of classified
information would cause identifiable damage to the national security and
explaining the basis for the classification of the information. CIPA
Section 6(c)(2). The apparent basis for the affidavit is to provide the
court with knowledge of the reasons for the classification of the
materials in order for the court to be able to determine relevance, or
to create fair substitutions and/or stipulations. See Salgado, supra, at
7. Sealed Proceedings and Reconsideration: All in camera proceedings and
hearings pursuant to CIPA shall be sealed and preserved for the
appellate record. CIPA Section 6(d). Also, a defendant may seek
reconsideration of a court's determination prior to or during trial.
This provision allows flexibility to revisit pre-trial rulings which are
based solely on attorney representations and which may be contradicted
or otherwise affected by information at trial.
8. Effect of Disclosure: Section 6(e)(1) provides that if the court
ultimately denies the government's motion for substitutions, the
government may nevertheless continue to object and refuse to release the
classified information at issue. Such an objection must be made by an
affidavit of the Attorney General, and the court must order that the
defendant not disclose or cause the disclosure of the classified
information. In the event that the government refuses to disclose
classified information, and a defendant is prevented from disclosing or
causing the disclosure of classified information, the court shall
dismiss the indictment or information. CIPA Section 6(e)(2).
However, the presumption for dismissal may be overcome by the government
if it convinces the court that the interest of justice would not be
served by dismissal. Other appropriate actions short of dismissing the
indictment may include (but are not limited to) dismissing specified
counts, finding against the government on any issue as to which the
classified information relates, or striking or precluding all or part of
the testimony of a witness.
9. Reciprocity: Section 6(f) provides that whenever the court rules that
a defendant may use classified information after a Section 6(a) hearing,
the government must provide the defendant with the information it
expects to use to rebut such information. This "reciprocity" provision
was enacted in the interest of fairness and to balance the notice
obligations imposed by the defendant under Section 5. See 1980 U.S. Code
Cong. & Admin. News at 4303. If the government fails to provide the
defendant with the information it expects to use to rebut the classified
information, then the court may, similar to the penalty facing a
defendant under Section 5, preclude the use of any rebuttal information
the government fails to properly notice.
10. Interlocutory Appeal: The government may take an interlocutory
appeal either before or after the defendant has been placed in jeopardy
from a decision or order of a district court in a criminal case
authorizing the disclosure of classified information, imposing sanctions
for non-disclosure, or refusing a protective order sought by the
government to prevent disclosure of classified information. Section
7(a). Appeals under this section are expedited by the courts of appeals.
Section 7(b). If an appeal is taken prior to trial, the appeal must be
lodged within ten (10) days after the decision or order appealed from
and the trial will be stayed until the appeal is resolved.
If an appeal is taken during trial, the trial shall be adjourned until
the appeal is resolved and the Court of Appeals (1) shall hear the
argument on such appeal within four (4) days of the adjournment of
trial, (2) may dispense with written briefs other than the supporting
materials previously submitted to the trial court, (3) shall render its
decision within four (4) days of argument on appeal, and (4) may
dispense with the issuance of a written opinion in rendering its
decision. An appeal in this fashion does not compromise the right of the
defendant, in a subsequent appeal from a judgment of conviction, to
claim reversible error by the trial court on remand of a ruling appealed
from during trial.
11. Handling Classified Information: CIPA Section 8 contains three (3)
provisions governing the actual handling of classified information at
trial. Under Section 8(a), classified information may be admitted into
evidence without a change in its classification status. Thus, this
subsection simply recognizes that classification is an Executive and not
a judicial function. See 1980 U.S. Code Cong. & Admin. News at 4304.
Section 8(b) allows the Court to admit into evidence only portions of a
writing. recording, or photograph, or, alternatively, to admit the
entire evidence with redactions, unless fairness requires otherwise. The
purpose of the rule is to prevent unnecessary disclosure of classified
information by allowing the deletion of irrelevant sensitive information
from materials admitted into evidence.
Subsection 8(c) allows the government to object to an inquiry of a
witness which may require a response disclosing classified information
not previously found admissible pursuant to a Section 6 proceeding. The
Court must then take appropriate action to guard against such
disclosures, including but not limited to requiring a proffer from each
side on the evidence that will be elicited.
12. Security Procedures: This section directs the Chief Justice of
the United States to draft and implement procedures designed to protect
classified information in the physical custody of district courts,
courts of appeals or the United States Supreme Court. Chief Justice
Warren Burger issued guidelines February 12, 1981, and they are located
following Section 9 of the Act.
III. SUMMARY OUTLINE OF PROCEDURES
1. Is the information classified pursuant to Executive Order?
2. Is the classified information discoverable, i.e., is it relevant to
the Defendant's case?
3. Has the government asserted a colorable claim of privilege?
4. If so, is the information helpful to the defense?
5. Has the government submitted in camera ex parte classified (or
unclassified) material and argument that the requested information is
not relevant and therefore not discoverable?
6. Has the defense submitted an ex parte in camera affidavit explaining
why the requested information is relevant to the preparation of a
7. [In some circuits] Does the Defendant's need for the information
outweigh the government's asserted interest in keeping the information
8. If the information is discoverable, has the government moved for a
protective order pursuant to 3?
9. Has the government invoked Section 4 by making a "sufficient showing"
to the court for authorization to:
a) delete specified items of classified information from documents
made available to the defendant;
b) substitute a summary of the information for such classified
c) substitute a statement admitting relevant facts that the
classified information would tend to prove.
10. Has the Defendant properly and timely served notice pursuant to
Section 5 of intent to use classified information in court proceedings?
11. Has the government requested a pre-trial hearing pursuant to Section
6 in order to determine the "use, relevance or admissibility" of
12. Has the government given the Defendant proper notice of the
classified information at issue pursuant to Section 6(b)(1)?
13. Has the Defendant requested an order to make the government provide
details as to the portion of the indictment or information at issue in
the Section 6(a) hearing as are needed to give the Defendant fair notice
to prepare for the hearing?
14. If classified information is relevant and admissible, has the
government moved for either:
a) substitution of a statement admitting relevant facts that the
classified information would tend to prove; or
b) substitution of a summary of the specific classified information
pursuant to Section 6(c)?
15. If the court orders disclosure of classified information, has the
Attorney General filed an affidavit objecting to such disclosure
pursuant to Section 6(e)(1)?
16. If the Defendant is prevented from disclosing classified information
deemed relevant and admissible, should the court:
a) dismiss the indictment;
b) dismiss certain counts;
c) making findings against the government;
d) strike or preclude certain witnesses; or
e) take other appropriate action?
17. Is there an interlocutory appeal from:
a) an order of disclosure;
b) an order imposing sanctions for non-disclosure; or
c) refusal of the Defendant to comply with the protective order?
The foregoing is meant as an aid to the Court and counsel in preparing
to deal with the potential presence of classified information in this
1. Although a court may take into account the government's interest in
protecting national security, this interest cannot override a
defendant's right to a fair trial. United States v. Fernandez, 913 F.2d
148, 154 (4th Cir. 1990). Thus, classified information must nevertheless
be adrnitted if it is "helpful to the defense of an accused, or is
essential to a fair determination of a cause." Id.
DATED this 7th day of March, 1996.
Stephen Jones, OBA #4805
Richard Burr, Robert Nigh, Jr.,
JONES, WYATT & ROBERTS
114 East Broadway, Suite 1100
Post Office Box 472
Enid, Oklahoma 73702-0472
Attorneys for Defendant
Timothy James McVeigh
Robert L. Wyatt, IV,OBA #13154
Michael D. Roberts, OBA #13764
James L. Hankins, OBA #15506
Amber L. McLaughlin, TBA #13740980
Robert J. Warren, OBA #016123
Andrew P. Murphy, OBA #16702
Randall T. Coyne, MBA #549013
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