Gonzalez & Waddington – Attorneys at Law

Overview of military rule of evidence 505 – Classified evidence in a court-martial

Nature of the Privilege

MRE 505 is based upon CIPA, the common law government secrets privilege discussed in United States v. Reynolds, and the executive privilege discussed in United States v. Nixon. Manual for Courts-Martial, United States, Mil. R. Evid. 505 analysis, at A22-40 (2002). It establishes a privilege prohibiting disclosure of classified information if disclosure would be detrimental to national security. It applies at all stages of the proceedings. MRE 505(a). In many respects, such as the requirement for the defendant to provide notice of intent to disclose classified information and the evidentiary substitution procedures, MRE 505 essentially mirrors CIPA.

Claiming the Privilege

The head of the executive or military department or government agency may claim the privilege based upon a finding that the information is properly classified and that disclosure would be detrimental to the national security. A witness or trial counsel is presumed to have the authority to claim the privilege on behalf of the holder of the privilege in the absence of evidence to the contrary. MRE 505(c). However, case law makes it clear that trial counsel should not claim the privilege in the absence of direction to do so by the appropriate agency head. In United States v. Flannigan, 28 M.J. 988 (AFCMR 1998), the Air Force Court of Military Review dismissed a charge because the trial counsel claimed the privilege at the direction of OSI personnel but did not coordinate with the Secretary of the Air Force.

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