Academic journal article Harvard Law Review

Criminal Law - Classified Information Procedures Act - Second Circuit Holds That Government May Withhold Classified Information Unless Information Would Be "Relevant and Helpful" to Defense. - United States V. Aref

Academic journal article Harvard Law Review

Criminal Law - Classified Information Procedures Act - Second Circuit Holds That Government May Withhold Classified Information Unless Information Would Be "Relevant and Helpful" to Defense. - United States V. Aref

Article excerpt

The Classified Information Procedures Act (1) (CIPA) is designed to allow the government to protect sensitive information from disclosure in a criminal prosecution, without thereby impairing the defense of the accused. (2) As its name implies, CIPA specifies procedures by which courts adjudicate issues surrounding disclosure or protection of classified information, but it specifies neither the source nor the scope of any privilege the government might enjoy in withholding classified information sought by the defense. (3) Recently, in United States v. Aref, (4) the Second Circuit held that the state secrets privilege enabled the government to refuse discovery of information governed by CIPA, unless that information was "relevant and helpful" to the defense. (5) In so doing, the court cited a privilege that evolved in civil litigation, where it is highly controversial because it demands great deference to the executive branch's desire to protect sensitive information. Although the court modified the substance of the privilege to adequately protect criminal defendants, it was unwise to use the state secrets label at all. The appropriate standards of privilege in civil and criminal litigation are very different, and confusing the two under the same name may have negative consequences for the law in both realms. The political controversy and precedential implications that the state secrets doctrine has developed in civil litigation could undermine the legitimacy of prosecutions involving classified information, while spreading the privilege's use to criminal law may weaken the political checks necessary to restrain its use in civil litigation.

Yassin Aref and Mohammed Hossain were arrested following a sting operation centered on the sale of a surface-to-air missile and were charged with numerous offenses, including attempt to commit money laundering and attempt to provide material support to a designated terrorist organization. (6) In pretrial proceedings before the District Court for the Northern District of New York, the government sought protective orders pursuant to CIPA to protect certain "classified information that might otherwise have been discoverable." (7) Following the publication of a New York Times article stating that the government's warrantless electronic surveillance program had played a role in the investigation of Aref, (8) the defense sought to obtain all documentation gathered from that surveillance. (9) The government resisted this with its own classified motions, filed in camera, ex parte. (10)

The district court issued three sealed orders denying Aref's motion to compel discovery and largely granting the government's request for protective orders. (11) In sealing those orders, the court stated that the government had, pursuant to CIPA, asserted that the withheld materials "contained classified information impacting the national security of this Country." (12) The court reviewed the materials in camera and "determined to sign the ... proposed Orders" protecting the materials. (13) On appeal, the defendants claimed the court had erred in denying them access to classified information. (14)

The Second Circuit affirmed. Writing for a unanimous panel, Judge McLaughlin began by noting that although CIPA "does not itself create a privilege," it "presupposes a governmental privilege against disclosing classified information." (15) This left the court to determine the identity and nature of that privilege, a matter of first impression in the Second Circuit. (16) With little explanation, Judge McLaughlin stated that "[t]he most likely source for the protection of classified information lies in the common-law privilege against disclosure of state secrets." (17) He then addressed an explicit statement in CIPA's legislative history that the "state secrets privilege is not applicable in the criminal arena." (18) He rejected this assertion primarily through his analysis of the Supreme Court's seminal state secrets case, United States v. …

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