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June 22, 1988


Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL


 The Court has before it the joint motion of the four defendants entitled Motion of Defendants for a Declaration that Section 5 of the Classified Information Procedures Act, and the Protective Order Entered April 15, 1988, Are Unconstitutional (Defendants' Joint Pretrial Motion No. 4). The motion has been fully briefed and argued.


 The Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. IV, was designed to provide a mechanism in criminal cases that might involve disclosure of classified information by a defendant which would provide the Government sufficient information at an early stage to decide whether or not the possible harm to national security created by a defendant's need to disclose classified information outweighs the benefit to the public interest which is derived from prosecution of criminal charges. To this end, Congress established a series of primarily pretrial procedures to enable a trial judge to rule on the use, relevance or admissibility of the classified information requested by a defendant before any public disclosure during trial or pretrial proceedings.

 Although prior decisions in other Circuits have upheld the constitutionality of CIPA, *fn1" this motion focuses on the constitutionality of the Act, particularly Section 5, as it applies to this unusual case. Here, serious issues arise because, unlike cases to date, the events covered by the indictment, much of the conduct of the participants -- defendants and witnesses alike -- and many of the intelligence methods and sources they employed are highly classified. In these circumstances a defendant seeking to use classified documents at the trial is required under a literal application of CIPA to reveal his defense before the trial starts and is confronted with other related obstacles and disadvantages. This is made apparent by a brief exposition of the provisions of the statute.


 Under CIPA, the classified information defendant reasonably expects to present or elicit from witnesses during trial proceedings in open court must go through a three-step process before it may be disclosed. First, the defendant is required to notify the Government and the court in writing of any classified information he reasonably expects to present or elicit from witnesses in pretrial or trial proceedings held in open court. Following such notice, the Government may move for a hearing before the Court on the admissibility of the classified information at issue. Once the Court determines the use, relevance or admissibility of the classified information, it then must decide whether the information will be fully disclosed in open court or whether it is appropriate for the information to be presented in an alternative substituted or redacted form. The CIPA provisions detailing these three steps are discussed below.

If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing.

 This section further specifies that the defendant's notice is to "include a brief description of the classified information" the defendant expects to present or elicit from witnesses. Until a specific item of classified information is properly noticed, defendants are prohibited from disclosing that information during trial or pretrial proceedings. In addition, Section 5(b) authorizes the Court to preclude the defendant from disclosing any classified material "not made the subject of notification" and to prohibit the defendant from "examin[ing] . . . any witness with respect to any such information."

 Section 6 establishes proceedings for the determination by the court of the admissibility of classified information noticed by the defendant. It provides that the government may request a hearing on "all determinations concerning the use, relevance or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding." CIPA § 6(a). The hearing is to be held publicly unless the government certifies that classified information will be compromised and an in camera hearing is necessary. This section effects only the timing of determinations of use, relevance or admissibility by the court, the evidentiary standards for admissibility remain those currently applicable to all criminal cases.

 Prior to the hearing, the government is required under Section 6(b) to identify for the defendant the classified information that will be at issue. Such notice to the defendant requires specific identification of the classified information at issue if the government has already made the information available to the defendant. Otherwise, the government may provide the defendant with a generic categorization of the information when approved by the court. Further, whenever the government requests a Section 6 hearing, upon request of the defendant the Court 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." Id. § 6(b)(2).

 If the government's motion for a hearing has been timely filed prior to the pretrial or trial proceeding, the court must make its rulings on admissibility before the proceeding commences. Id. § 6(a). The Court is to set forth in writing the basis for its determinations as to each classified item reviewed. Id. If following an in camera hearing the Court deems classified information at issue to be inadmissible, the in camera record is to be sealed in the event of a post-trial appeal by the defendant. ...

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