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

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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:

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• 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.

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• 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.

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• 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.

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• 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.

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• 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.

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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.

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• 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.