In a nutshell, exemptions are meant to protect sensitive information from disclosure to the public in order to maintain national security. The primary document aimed to interpret and implement exemptions is the Classified Information Procedures Act (CIPA). However, the act is not intended to prioritize state interests as such. According to Abrams (2012), “the purpose of CIPA is to strike a balance between protecting the rights of a criminal defendant to know the evidence being used against him or her and the government’s need to protect against disclosure of certain types of confidential information that the government is unwilling to disclose or have disclosed publicly” (p. 469). Overall, the act requires the defense to inform the court and prosecutors about available classified evidence, which may be used during the trial (U.S. Department of Justice, n.d.). Afterward, the court decides whether this information is permissible and, if this is the case, the government may substitute the classified evidence with the unclassified one (U.S. Department of Justice, n.d.). However, the information disclosure provisions provided in the act may undermine the ability to proceed the trial in civil cases in a fair and just manner because state secrets are often usually as a priority.
As stated by Chandran (2015), disclosure requirements presented in the CIPA mainly “operate to prevent an artful defendant from threatening to reveal sensitive classified information as leverage to induce the government to drop criminal charges against him” (p. 1413). In this situation, the act helps protect national security interests well and justifies burdens on defendants. However, the dilemma arises in cases when a defendant (a government outsider) does not have any classified evidence. Such situations may usually lead to nonreciprocal discovery burdens for him/her. In this way, there is a risk that the CIPA procedures may fail to protect the interests of injured parties.
More frequent implementation of the state secrets privileges in recent years has revealed the “need for the judiciary and the Executive to have clear, fair, and safe rules” (Aftergood, 2010, para. 1). It is especially relevant to terrorism prosecutions and cases when evidence is collected by the government through FISA surveillance. The government usually classifies such information in order to hide the way it is derived. As a result, a defendant cannot use his/her own emails, messages, and other personal data during the trial. The given situation creates a prominent asymmetry in the protection of private interests against the state interests. However, as it was already implied above, the CIPA “was never intended to prevent disclosure when the information is necessary to the defense” (Chandran, 2015, p. 1418). Outsider defendants can balance the non-reciprocity burdens by using Section 5 of the act, allowing them to get familiar with the classified information (e.g., in the form of summaries), which the prosecution intends to utilize against them. It is possible to say that without the reciprocity provisions identified in the act, it could be considered unconstitutional.
Overall, the CIPA allowed the government to control the spread of vital national security information in trial proceedings more efficiently. However, it is rather effective in dealing with insider cases, i.e., employee vs. government. At the same time, in outsider cases, it is often challenging to maintain reciprocity associated with classified information exceptions, and it is worth noticing that most of the terrorist proceedings fall under this category. Nevertheless, outsider defendants usually do not pose any threat of graymail. For this reason, it may be required to develop a set of new disclosure procedures that would help meet criminal defendants’ interests in the given context better.
References
Abrams, N. (2012). Anti-terrorism and criminal enforcement (4th ed.). St. Paul, MN: Thomson Reuters.
Aftergood, S. (2010). Secrecy news: A tutorial on the Classified Information Procedures Act.
Chandran, A. (2015). The classified information procedures act in the age of terrorism: remodeling CIPA in an offense-specific manner. Duke Law Journal, 64, 1411-1451.
U.S. Department of Justice. (n.d.). Synopsis of classified information Procedures Act (CIPA).