Critical Review of the Classified Information Procedures Act, A
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A Critical Review of The Classified
Information Procedures Act
Brian Z. Tamanaha*
I. INTRODUCTION
Graymail refers to the situation where a criminal defendant
threatens to disclose classified information during the course of trial in
the hope that the government would rather forego prosecution than
suffer disclosure of the information.' So long as the threat of disclo-
sure is a real one, the defendant may enjoy immunity from prosecu-
tion.2 Sensitive regard for national security was seen as having
resulted in foregoing prosecutions for serious crimes, even in cases
where the chances were great that, properly handled prior to trial, a
defendant could well have been accorded due process without any cost
in public revelation of classified information.3
The Classified Information Procedures Act (CIPA)4 was enacted
by Congress in 1980 to deal with the growing graymail problem.5
CIPA is an omnibus act containing pretrial and trial procedures to be
applied whenever classified information may be be involved in a crimi-
nal case. In its effort to combat graymail, CIPA must reconcile two
often conflicting interests: the defendant's right to a fair trial and the
government's need to protect national security information involved in
the trial.6 Although in large part the Act is highly functional and con-
* Attorney, Massachusetts Bar, admitted to practice in the Ninth Circuit and the District
of Hawaii; J.D. magna cum laude 1983, Boston University School of Law; B.S. 1980, University
of Oregon. The Author has worked with CIPA issues as a criminal defense attorney, handling
over 500 classified documents in trial. The Author wishes to thank Kats and Happy for their
support.
1. United States v. Smith, 780 F.2d 1102, 1105 (4th Cir. 1985); S. REP. No. 823, 96th
Cong., 2d Sess. 4 (1980), reprinted in 1980 U.S. CODE CONG. & AD. NEws 4294-4306.
2. NATIONAL SECURITY SECRETS AND THE ADMINISTRATION OF JUSTICE, REPORT OF
THE SELECT COMM. ON INTELLIGENCE, 95th Cong., 2d Sess. 11-12 (1978) [hereinafter cited as
SuBCOMM. REPORT ON DISCLOSURE].
3. United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983).
4. Pub. L. No. 96-456, 94 Stat. 2025 (codified at 18 U.S.C. app. (1982)).
5. S. REP. No. 823, supra note I, at 4297-98; Smith, 780 F.2d at 1105.
6. 126 CONG. REC. 26,501, 26,504 (1980) (statement of co-sponser, Rep. Edwards) (In](ViewImageLocal?handle=hein.journals/ajcl13&div=22&collection=&method=preview&ext=.png&size=3)
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Critical Review of the Classified Information Procedures Act, A
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