Introduction

The rules of procedure pertaining to the handling of classified material during criminal Court Martials are designed to balance the two competing interests at play: the defendant’s right to a fair trial and the government’s need to withhold certain information.

In cases where the confidentiality of the information alluded to by the defendant is deemed more important than charging the defendant, the prosecution can drop the case. This creates the possibility for the defendant to force the prosecution to drop its case simply by claiming that information vital to national security is required for the trial, whether or not that is actually the case. This phenomenon is known as “graymail” and its avoidance is one of the objectives of the procedure put in place to deal with confidential information.

This chapter will detail how the Courts handle confidential information. First it will explain at what stages of a trial this information can come into play. Then, it will explain the different types of information that exist and how information becomes classified and then declassified. Next, it will focus on how the Courts approach situations involving confidential information. It will look at the options available to both the defense and prosecution. Finally, the chapter will examine other factors to be taken into consideration and a general guideline of how to deal with confidential information.

• What can be classified?
• Levels of classification & Compartmented information
• The Classification Process
• Duration of classification
• Information not subject to classification
• Challenging classification & Document making
• Declassification
• Classification review
• Government secrets privilege
• Common law government secrets privilege
• Classified Information Procedures Act (CIPA)
• Military Rule of Evidence 505
• Relevant Court Martial procedure
• Pre-preferral
• Counsel for the defendant
• Investigation
• Discovery
• Defense duty of notification
• In Camera proceeding
• Closed courtroom proceedings