Paul G. Gill *
For federal criminal defendants or their counsel first caught up in a case involving classified information, it is easy to find the text of the Classified Information Procedures Act (“CIPA” or “the Act”). The Department of Justice makes available a synopsis of the Act, obviously from the perspective of the prosecution, but generously flavored with case law advancing that perspective. Case law sustaining CIPA against constitutional attack, either facially or as applied, is easy enough to find. Plenty of related case law likewise holds that CIPA’s procedures allow courts to reasonably balance the executive’s right to protect classified information against a criminal accused’s constitutional rights to know and use evidence material to his defense.
* Assistant Federal Public Defender, Richmond, Virginia. J.D., 1990, University of Richmond School of Law. His experience as a practitioner with classified information has included his representation of a Russian expatriate found on an Afghan battlefield in 2009 after a spectacularly unsuccessful Taliban authorized attack on Afghan Border Police and the American forces that responded, who was five years later charged with various violations of American law and tried as a civilian.