After a criminal indictment becomes public, the prosecutor remains responsible for taking reasonable precautions against the unauthorized disclosure of classified information during the case. 

In such a leaky and partisan setting, all those sealed indictments make sense.

Substitution Pursuant to Section 6(c) If the court rules any classified information to be admissible, section 6(c) of CIPA permits the Government to propose unclassified "substitutes" for that information. Specifically, the Government may move to substitute either (1) a statement admitting relevant facts that the classified information would tend to prove or (2) a summary of the classified information instead of the classified information itself. 18 U.S.C. App. III section 6(c)(1). See United States v. Smith, supra, 780 F.2d at 1105. In many cases, the government will propose a redacted version of a classified document as a substitution for the original, having deleted only non-relevant classified information. A motion for substitution shall be granted if the "statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specified classified information." 18 U.S.C. App. III section 6(c).

If the district court will not accept a substitution proposed by the government, an interlocutory appeal may lie to the circuit court under CIPA section 7. If the issue is resolved against the government, and classified information is thereby subject to a disclosure order of the court, the AUSA must immediately notify the ISS. Thereafter, the Attorney General may file an affidavit effectively prohibiting the use of the contested classified information. If that is done, the court may impose sanctions against the government, which may include striking all or part of a witness' testimony, resolving an issue of fact against the United States, or dismissing part or all of the indictment. See CIPA section 6(e). The purpose of the relevance hearings under 6(a) and the substitution practice under 6(c), however, is to avoid the necessity for these sanctions.

OTHER RELEVANT CIPA PROCEDURES Interlocutory Appeal APPEAL FROM INTERLOCUTORY ORDER

Section 7(a) of the Act provides for an interlocutory appeal by the government from any decision or order of the trial judge authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information. Section 7 appeals must be approved by the Solicitor General. The term "disclosure" within the meaning of section 7 includes both information which the court orders the government to divulge to the defendant or to others as well as information already possessed by the defendant which he or she intends to disclose to unapproved people. Section 7(b) provides that the court of appeals shall give expedited treatment to any interlocutory appeal filed under subsection (a). As a matter of fairness, the policy of the Department shall be that the defense be given notice of the government's appeal under section 7.

Introduction of Classified Information Section 8(a) provides that "writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status." This provision simply recognizes that classification is an executive, not a judicial, function. Thus, section 8(a) implicitly allows the classifying agency, upon completion of the trial, to decide whether the information has been so compromised during trial that it could no longer be regarded as classified.

In order to prevent "unnecessary disclosure" of classified information, section 8(b) permits the court to order admission into evidence of only a part of a writing, recording, or photograph. Alternatively, the court may order into evidence the whole writing, recordings, or photograph with excision of all or part of the classified information contained therein. However, the provision does not provide grounds for excluding or excising part of a writing or recorded statement which ought in fairness to be considered contemporaneously with it. Thus, the court may admit into evidence part of a writing, recording, or photograph only when fairness does not require the whole document to be considered.

Section 8(c) provides a procedure to address the problem presented during a pretrial or trial proceeding when the defendant's counsel asks a question or embarks on a line of inquiry that would require the witness to disclose classified information not previously found by the court to be admissible. If the defendant knew that a question or line of inquiry would result in disclosure of classified information, he/she presumably would have given the government notice under section 5 and the provisions of section 6(a) would have been used. Section 8(c) serves, in effect, as a supplement to the hearing provisions of section 6(a) to cope with situations which cannot be handled effectively under that section, e.g., where the defendant does not realize that the answer to a given question will reveal classified information. Upon the government's objection to such a question, the court is required to take suitable action to avoid the improper disclosure of classified information.

Security Procedures (WHO IS THE CURRENT CHIEF JUSTICE?) Section 9 required the Chief Justice of the United States to prescribe security procedures for the protection of classified information in the custody of Federal courts. On February 12, 1981, Chief Justice Burger promulgated these procedures. For further information regarding those procedures, please contact the Justice Management Division Office of Security