C riminal prosecutions involving classified information inherently create a tension between the government's legitimate interest in protecting sensitive national security information and a criminal defendant's rights under the United States Constitution and federal law. This tension was the primary factor leading to the 1980 enactment of the Classified Information Procedures Act (CIPA), which "provides pretrial procedures that will permit the trial judge to rule on questions of admissibility involving classified information before the introduction of the evidence in open court." First, issues may arise during the discovery phase, when the defendant requests and is entitled to classified information in the possession of the prosecution. CIPA also requires a defendant to notify the court and the prosecution of any classified information that he reasonably expects to disclose or cause the disclosure of. In some cases, protective orders may limit disclosure to individuals or attorneys, even from those who have received security clearances from the government. The defendant in this case argued that this restriction on communication violated his Sixth Amendment right to have the assistance of counsel. CIPA authorizes a court to permit the government to propose redactions to classified information provided to the defendant as part of discovery, but "does not give rise to an independent right to discovery" of classified information. Subsequently, this requirement was codified by the Jencks Act. Prior to the introduction of evidence at trial, a court may likewise permit the government to redact, summarize, or substitute classified information, but only so long as the substitution "provide[s] the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." Similar confrontation issues may be raised by use of the "silent witness rule," a procedure that may be offered by the government as a substitution for classified information that would be otherwise admissible in a criminal defendant's trial. If the defendant is not allowed to personally review classified information in the same manner that it is made available to the jury, the use of the silent witness rule may violate the defendant's right to confront the evidence used against him. Sterling had argued that such exclusions would violate his right to have a public trial and to confront witnesses against him.
A criminal prosecution involving classified information may cause tension between the government's interest in protecting classified information and the criminal defendant's right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as "graymail," led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information. Examples of recent cases implicating CIPA have arisen in the context of prosecutions against alleged terrorists, as well as prosecutions involving the unauthorized disclosure of classified information by former intelligence officials.
CIPA provides procedures that permit a trial judge to rule on the relevance or admissibility of classified information in a secure setting. The Act requires a defendant to notify the prosecution and the court of any classified information that the defendant may seek to discover or disclose during trial. During the discovery phase, CIPA authorizes courts to issue protective orders limiting disclosure to members of the defense team that have obtained adequate security clearances and to permit the government to use unclassified redactions or summaries of classified information that the defendant would normally be entitled to receive.
If classified information is to be introduced at trial, the court may allow substitutes of classified information to be used, so long as they provide the defendant with substantially the same ability to present a defense and do not otherwise violate his constitutional rights. Among the rights that may be implicated by the application of CIPA in a criminal prosecution are the defendant's right to have a public trial, to be confronted with the witnesses against him, and to have the assistance of counsel. Application of CIPA may also be implicated by the obligation of the prosecution to provide the defendant, under Brady v. Maryland, with exculpatory information in its possession and the separate obligation to provide the defendant with government witnesses' prior written statements pursuant to the Jencks Act.