Click here to check the ultimate guide to learn how to leverage your PC and internet to make money online.
The Washington Independent
The Washington Independent

You Make the Call! Are Classified Info Rules Different for Civilian Courts and Military Commissions?

Ah, a subject dear to my journalistic heart. Sen. Jeff Sessions (R-Ala.) said that the Justice Department disclosed to the Senate Judiciary Committee a list of

Amandeep Coleman
Last updated: Jul 31, 2020 | Apr 14, 2010

Ah, a subject dear to my journalistic heart. Sen. Jeff Sessions (R-Ala.) said that the Justice Department disclosed to the Senate Judiciary Committee a list of “seven” circumstances under which military commissions better protect classified information than civilian courts. Holder has previously testified that the differences in procedure are picayune, obscure and trivial, as the rules for military commissions’ handling of classified info are based on CIPA, the Classified Information Procedures Act that governs how it’s handled in civilian courts. Holder parried that Sessions was mischaracterizing the disclosure, saying, “those seven instances that are listed reflect the kinds of things that judges do.”

But we don’t do he-said-she-saids here at The Washington Independent. So I’ve got what Sessions is talking about, and so I’m going to post it here so you can see this for yourself and see who’s telling the truth. It’s a disclosure from March 22, and it’s public, but it’s also in a bit of an obscure place on the Judiciary Committee’s webpage (PDF). By contrast, and so you can reach an informed decision, the CIPA statute is here. After the jump, the seven distinctions Holder and Sessions fought about on classified-info procedures between civilian courts and military commissions. You make the call.

The classified information provisions of the Military Commissions Act of 2009 were based on CIPA, but with revisions to take into account lessons learned in terrorism cases in federal court. The following is a list of some of the key differences between the MCA of 2009 and CIPA:

• Ex Parte Pretrial Conference. The MCA includes an explicit provision allowing a military commissions judge to conduct an ex parte pretrial conference with either party to address potential classified information issues that may arise in connection with the case. Although federal judges applying CIPA routinely conduct such conferences, they are not expressly addressed in the statute.

• Protective Orders. The MCA requires a military commissions judge to issue an order to protect against the disclosure of classified information produced in discovery or otherwise provided to, or obtained by, any accused. This provides protection for classified material that the defense may have obtained outside the formal discovery process. While CIPA only requires the issuance of a protective order with respect to classified documents provided in discovery, some federal court judges have similarly issued protective orders covering the use at trial of classified information acquired by the defense outside the discovery process.

• Discovery. The MCA authorizes the military judge to order alternatives to full disclosure of any form of classified information. Although federal judges have crafted numerous ways to protect all types of classified information, CIPA only explicitly authorizes the judge to order alternatives to disclosure of classified documents. The bill also provides a clear standard (“non-cumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing”) for determining whether defense access to classified information should be granted. This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

• Declarations. Under the MCA, the prosecution must provide a declaration invoking a privilege to protect classified information and setting forth the damage to the national security that the disclosure or access to the classified information reasonably could be expected to cause when seeking an alternative to full disclosure. By comparison, CIPA does not specify what must be provided in support of the government’s request for relief from disclosure of classified information. This is consistent with CIPA practice — in which the government regularly provides a declaration setting forth the possible damage to national security if disclosure is ordered — but is not explicitly required by the CIPA statute.

• Use of Classified Information at Trial. The MCA bill provides explicit authority for the prosecution to protect the classified information it seeks to introduce at trial through the use of alternatives to full disclosure and protective orders. Although federal courts have routinely allowed the use of alternatives at trial, the CIPA statute does not provide the explicit authority to do so. The MCA also provides a standard for the judge in determining whether to order the disclosure of classified information for use at trial (“relevant and necessary to an element of the offense or a legally cognizable defense and . . . otherwise admissible in evidence”). This standard is drawn from case law addressing classified evidence issues but is not found in the text of CIPA itself.

Interlocutory Appeal Right by U.S. The MCA provides the U.S. with authority to seek interlocutory appeal of any order or decision that forces the disclosure of classified information, regardless of whether the order appealed from was entered under a specific provision governing classified information, or any other rule or provision of law. By comparison, CIPA only provides for interlocutory appeal from certain decisions or orders issued pursuant to CIPA.

• Closure of the Courtroom. The MCA explicitly allows the judge to order closure of the courtroom to protect evidence “whose disclosure could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities.” (§ 949d(a)(2)(c) of S. 1390.) Although CIPA does not contain a provision explicitly allowing such closures, the courtroom may be closed to protect classified information in federal court provided the relevant constitutional standard is met.

Amandeep Coleman | Amandeep had never known a moment when she wasn't reading or making up stories, having been born into a family of readers. She took out a pencil and notebook during the now-famous blizzard and started writing down one of those stories. It was there that I began my professional life. Her first book was written after several rejections and manuscripts. She is a member of many writers' organizations and has received several accolades from her peers and the publishing industry. The New Yorker recently dubbed her "America's favorite novelist".


Rep. Paul Ryan to deliver SOTU response

Chairman of the House Budget Committee Rep. Paul Ryan (R-Wis.) will deliver the Republican response to the State of the Union Tuesday, according to Mike Allen

Rep. Paulsen allies with medical device industry to relax FDA oversight

Source: Flickr; Republicanconference ( On the heels of the Minnesota Independent story last week about U.S. Rep. Erik Paulsen’s cozy financial relationship with the medical device industry, the New York Times reported Tuesday that some health professionals are alarmed by Paulsen’s push to relax Food and Drug Administration (FDA) oversight

Rep. Paulsen touts balanced budget constitutional amendment

In a post for the conservative blog True North , U.S. Rep

Rep. Patrick McHenry: Please, Conservatives, Fill Out Your Census Forms!

The conservative congressman from North Carolina, a constant critic of the census -- one of the people who sounded the alarm about politicization when the

Rep. Paulsen, Karl Rove the latest to get ‘glittered’

Rep. Erik Paulsen and former Bush staffer Karl Rove were both showered with glitter at the Midwest Leadership Conference Friday

Rep. Perlmutter to hold constituent meet-up in grocery store

Colorado Congressman Ed Perlmutter will hold a Government in the Grocery constituent meet-up this evening from 5-7 at the Safeway at 38th and Wadsworth in Wheat Ridge. The address is 3900 Wadsworth. The meeting, where Perlmutter typically sits at a folding table and talks to whomever shows up, is free and open to the public

Rep. Perlmutter criticizes House measure that would eliminate 800K federal jobs

Congressman Ed Perlmutter today issued a scathing statement criticizing the House of Representatives for passing a spending bill that could put nearly a million federal employees out of work. The Colorado delegation voted strictly on party lines, with all four Republicans voting in favor of the bill and the three Democrats voting in opposition. Perlmutter’s statement: “My number one priority is to get people back to work because that’s the best thing we can do to pay our debt and move forward toward economic stability

Rep. Pete Stark Won’t Dignify Constituent by, er, Micturating Upon His Leg

In the tradition of Rep. Barney Frank (D-Mass.), California Democratic Rep. Pete Stark revealed at a recent town hall gathering that there are limits to what

Rep. Peace, ACLU seek investigation of soldier’s allegations of racial discrimination in Afghanistan

Both Rep. Steve Pearce (R-NM) and the American Civil Liberties Union agree: There needs to be an investigation into Spc.

© Copyright 2021 The Washington Independent All Rights Reserved

Terms & Privacy |

Click here to check the ultimate guide to learn how to leverage your PC and internet to make money online.