HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.crs/goverfn0001 and id is 1 raw text is:
Congressional Research Service
Informing the IegisI9tive debate since 1914
November 6, 2024
The Classified Information Procedures Act (CIPA)
The Classified Information Procedures Act (CIPA), enacted
in 1980, establishes uniform procedures for federal courts
to determine the admissibility and manage the admission of
classified information as evidence in federal criminal
proceedings. This In Focus describes CIPA's background,
key provisions, and potential issues for Congress.
ackground
Criminal prosecutions involving classified information
create a tension between the government's interest in
protecting national security information and a defendant's
right to exculpatory information possessed by the
government under the Fifth Amendment's Due Process
Clause. Inappropriately excluding classified information
from a case could violate a defendant's rights. Conversely,
defendants could engage in graymail-seeking to acquire
or introduce classified information tangentially related to a
case to force the government to dismiss charges rather than
risk disclosing classified information. Congress intended
CIPA to address these concerns by creating a procedural
framework for federal courts to prevent unnecessary or
inadvertent disclosures of classified information while
upholding defendants' rights. Courts have stated that CIPA
only institutes uniform procedures and does not create new
substantive privileges for the government or defendants.
Definitons
CIPA defines two key terms critical to its ambit: classified
information and national security. Classified information
is any material that the U.S. government has determined-
pursuant to executive order, statute, or regulation-requires
protection from unauthorized disclosure for national
security reasons. National security, in turn, means the
national defense and foreign relations of the United States.
Court Security Procedures
CIPA mandates that the Chief Justice of the United States,
in consultation with the Attorney General and Director of
National Intelligence, issue rules for protecting classified
information during criminal proceedings. The rules require
a court to appoint a Classified Information Security Officer
from the Department of Justice's Litigation Security Group
if a criminal case involves or potentially involves classified
information. This officer assists parties and court staff in
obtaining security clearances and properly handling
classified information. Courts must also provide secure
locations for proceedings involving classified information
and control access to and handling of such information. The
government may obtain information on the trustworthiness
of individuals acting for the defense and bring such
information to the court's attention. The security procedures
do not require investigation or security clearance of jurors
or interfering with ajury's functions.
Pretr aA and Tral Procedures
CIPA creates several uniform procedures that federal courts
can use to manage classified information issues.
Pretrial Conference
At any time after an indictment, a party may request a
pretrial conference to consider classified information issues
that might arise at criminal trial. At the conference, the
court must establish timing requirements for, among other
things, (1) discovery requests involving classified
information, (2) defendants notifying the government that
they intend to disclose or cause the disclosure of classified
information during proceedings, and (3) the government's
motions for hearings on classified information admissibility
and the disclosure of such information if admitted.
Notice
Defendants must notify the court and government, in
writing, if they reasonably expect to disclose or cause the
disclosure of classified information in connection with
pretrial or trial proceedings. The court can set the time in
which to provide notice prior to trial, but if no time period
is set, notice must be given within 30 days of trial. If
defendants later come to reasonably expect disclosure, they
must provide notice as soon as possible. A notice must
contain a brief description of the classified information,
which courts have interpreted to require a particularized
account setting forth specifically the classified information
which the defendant reasonably believes to be necessary for
his defense so that the government [is not] surprised by
a defendant's disclosure. A defendant may not disclose the
information until the government has had a reasonable
opportunity to seek a court order on the information's
admissibility and proper handling. If a defendant provides
inadequate notice, a court may preclude or limit the
information's disclosure or use.
Hearings
Within a time period set by the court, the government can
move for a hearing on the admissibility and proper handling
of classified information. If the Attorney General certifies
that a public hearing risks disclosing classified information,
proceedings must be held in camera (i.e., privately, without
press or public access). Prior to the hearing, the government
must notify the defendant of the classified information at
issue, either specifically (if the information was previously
shared with the defendant) or in generic terms (if the
information was not previously shared). The defendant is
entitled to any details needed to receive fair notice to
prepare for the hearing. The court must issue a ruling prior
to commencing pretrial or trial proceedings and must
describe the basis for its decision in writing as to each item
of classified information. If the court determines that the
classified information may not be disclosed, it must seal](ViewImageLocal?handle=hein.crs/goverfn0001&div=1&collection=&method=preview&ext=.png&size=3)