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McVeigh's 3/96 Memo Summarizing The Classified Information Procedures Act
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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 ("CIPA").
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. 1984).
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 classification:
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 security; and
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." Id.
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 information.
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 6(b)(2).
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 438.
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 defense?
7. [In some circuits] Does the Defendant's need for the information outweigh the government's asserted interest in keeping the information secret?
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 documents; or
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 classified information?
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 case.
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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