Discussion of relevant court martial procedure for classified information (see Classified evidence in a court martial):
There are several ways in which classified information can be relevant to a criminal trial in martial Court. The charges can be based on the improper handling of such material, for example the sale of classified information, simple mishandling of it or giving it to the enemy. The classified information can also be an element of a charge or a defense, or it can be susceptible to come to light during the discovery process. This chapter will outline the obligations and options of all parties during each step of the trial.
The first step in a criminal proceeding is where the CA decides which charges he will pursue. National security implications can have an effect on which charges will be preferred, if any. Therefore, the CA must notify headquarters of the possible classified information that the charges might relate to. It must then request a classification review and request guidance from the OCA as to what can be revealed during the trial and establish procedures to guarantee the security of the information. These steps will influence the CA’s decision on which charges to pursue, particularly if an OCA is unwilling to disclose certain information. The OCA must also complete this process as quickly as possible, because speedy trial obligations still exist in national security cases, and charges can be overturned if there is unreasonable delay.
Counsel for the defendant
Attorney-client privilege does not authorize a defendant to reveal to his counsel classified information. Counsel must first obtain a security clearance in order to receive confidential information. If the chosen attorney does not have clearance, an agency can perform a background check and grant security clearance. The process for this is outlined in United States v. Schmidt.
MRE 505 grants certain privileges to the CA in order to protect classified information. It can remove certain elements of classified information from documents made available, it can substitute a portion of classified information with a summary or an admission of the facts that the confidential information could prove.
Moreover, the CA also has the power to subject the release of the documents to certain conditions in order to safeguard the information and to withhold documents if it is necessary to protect national security. If the defense believes that redacted information was not done to prevent harm to national security, then it can appeal to the trial judge to have it rule on the release of the original document. A judge can order the same alternatives to full disclosure that the trial lawyer can use.
MRE 505 has extensive provisions regarding litigation over discovery. This is because the discovery process is much different when classified information is involved; the trial counsel cannot permit the usual “open file” discovery, which would disclose much more information than necessary. Information may have been classified by different OCAs, who must all give their approval to any disclosure, which further complicates this process. Therefore, defense cannot go on fishing expeditions through classified material.
Often, at the outset, documents will be made available to the defense, without allowing the physical custody of the documents. This allows additional protection of documents and for any mismarked documents to be reviewed.
Brady material is classified information that could reasonably either exculpate the defendant, reduce the degree of guilt or reduce the punishment. The prosecutor has the obligation to “prudently” search for this type of material in the intelligence community’s files if there is reason to believe that it exists. Whether or not the prosecutor must disclose this information depends on a three part test developed in United States v. Yunis, 867 F.2d 617 (DC Cir. 1989):
- the existence of a colorable privilege
- whether the information is essential to a fair determination of the cause.
If the material fails this test, it does not mean that this material will not help the defendant’s cause. In fact, failure to divulge exculpatory information allows the judge to imposed sanctions listed at 505(i)(4)(E), which include exculpation.
Defense duty of notification
There is an obligation for the defense to notify the government of any classified information that it expects to reveal or cause to be disclosed at any point of the trial. This even includes the cross-examination of the government’s witnesses, so it is vital that the counsel for the defendant properly plan out all possible defenses in order not to be barred from pursuing any avenues. While there is no reciprocal obligation for the government to give notice, the defense can move that the government be required to do so. Moreover, as the government will move for a closed session in a trial where they expect to reveal classified information (as discussed below), the defense will have advance warning.
Notification must be served to opposing counsel and to the military judge, before the arraignment. The duty to notify is ongoing; the defense must notify “as soon as possible” when new information is likely to be disclosed. The disclosure must state which items of classified information in particular the defense might divulge and for what purpose. The government may then oppose the disclosure of that information, or offer an alternative to full disclosure.
In Camera proceeding
This is to be distinguished from a closed courtroom hearing. In fact, the purpose of the In Camera proceeding is to reach a decision regarding the government’s assertion of privilege over information. It is the necessary step where the government seeks approval of its assertion of privilege from the judge. The judge will review the information and ensure that it complies with the Executive Order. The defence will receive advance notice of the information that will be dealt with in the proceeding. If the defence has not received that information, it must be provided with a generic description. This allows the defence to argue that the information should be disclosed.
The judge will then decide whether or not the information should be disclosed. If he finds that it should be, the parties can also discuss possible alternatives to full disclosure. The judge can order an alternative that he finds acceptable. If the government still invokes privilege and refuses to disclose the required information, then the judge can impose sanctions under M.R.E. 505(i).
Closed courtroom proceedings
The ability to present classified evidence during a closed session is unique to military courts and is not available under CIPA. These hearings are also known as Grunden trials. The trial should only be closed as far as necessary to protect the classified information. However, there is no rule against having virtually the entire trial closed if necessary. The Court must weigh the reason for closing the trial against the possibility of violations of procedural propriety that could occur because of the exclusion of the public. There is a heavy burden on the prosecutor to prove the necessity of a closed session, and the closed session should only contain testimony involving classified information.
The judge will decide on whether or not to close the hearing in a closure hearing, under R.C.M. 806(b)(2). This provision grants the judge broad discretion to protect national security. Closure of the session however, must only be ordered if other measures would not be sufficient to protect the overreaching interest of national security. The following are some alternatives to closed hearings:
- Silent witness: In this case a witness familiar with the classified information will testify about information contained in a classified document, without revealing any of the classified information therein, in order to discuss the relevance of the information or any relevant non-confidential information contained in the document
- Code words or special terms: when the classified information relates to particular pieces of information, that information can be replaced by a code word, for example Country X, person P etc.
- Screens or disguise: These can be used to hide the identity of a witness when that is the classified information (as opposed to the substance of his testimony)
- Imagery: Imagery can be shielded from the public and made available only by those who have clearance by using screens or by distributing it directly to those who have clearance.
PRACTICE TIP: In a court martial, the defense must be aware that they must give notice to the Government if they will “cause the disclosure” of classified evidence when they cross examine a Government witness. If this is a possibility, then the defense must give notice to the court in accordance with MRE 505. If the defense fails to raise this issue in advance, then they may be precluded from eliciting this information at trial. Therefore, the defense must plan ahead and error on the side of caution by notifying the Government if they intend to illicit ay classified evidence. Otherwise, the prosecution may object to any questions that were not previously determined to be necessary and relevant to the defense pursuant to MRE 505(j)(4).
See, for example, United States v. Longhofer, 29 M.J. 22 (CMA 1989) or United States v. Duncan, 34 M.J. 1232 (ACMR 1992)
See United States v. Grunden, 2 M.J. 116 (C.M.A. 1977)