Legal Resources
CLASSIFIED INFORMATION PROCEDURES ACT
PL 96-456
96th Congress, Act of 15 October 1980 - 94 Stat. 2025, 18 USC APPENDIX, AS AMENDED BY PUB. L. 100-690, TITLE VII, SEC. 7020(G), NOV. 18, 1988, 102 STAT. 4396
Sec. 1. Definitions
(a) ''Classified information'', as used in this Act, means any
information or material that has been determined by the United
States Government pursuant to an Executive order, statute, or
regulation, to require protection against unauthorized disclosure
for reasons of national security and any restricted data, as
defined in paragraph r. of section 11 of the Atomic Energy Act of
1954 (42 U.S.C. 2014(y)).
(b) ''National security'', as used in this Act, means the
national defense and foreign relations of the United States.
Sec. 2. Pretrial conference
At any time after the filing of the indictment or information,
any party may move for a pretrial conference to consider matters
relating to classified information that may arise in connection
with the prosecution. Following such motion, or on its own motion,
the court shall promptly hold a pretrial conference to establish
the timing of requests for discovery, the provision of notice
required by section 5 of this Act, and the initiation of the
procedure established by section 6 of this Act. In addition, at the
pretrial conference the court may consider any matters which relate
to classified information or which may promote a fair and
expeditious trial. No admission made by the defendant or by any
attorney for the defendant at such a conference may be used against
the defendant unless the admission is in writing and is signed by
the defendant and by the attorney for the defendant.
Sec. 3. Protective orders
Upon motion of the United States, the court shall issue an order
to protect against the disclosure of any classified information
disclosed by the United States to any defendant in any criminal
case in a district court of the United States.
Sec. 4. Discovery of classified information by defendants
The court, upon a sufficient showing, may authorize the United
States to delete specified items of classified information from
documents to be made available to the defendant through discovery
under the Federal Rules of Criminal Procedure, to substitute a
summary of the information for such classified documents, or to
substitute a statement admitting relevant facts that the classified
information would tend to prove. The court may permit the United
States to make a request for such authorization in the form of a
written statement to be inspected by the court alone. If the court
enters an order granting relief following such an ex parte showing,
the entire text of the statement of the United States shall be
sealed and preserved in the records of the court to be made
available to the appellate court in the event of an appeal.
Sec. 5. Notice of defendant's intention to disclose classified
information
(a) Notice by Defendant. - If a defendant reasonably expects to
disclose or to cause the disclosure of classified information in
any manner in connection with any trial or pretrial proceeding
involving the criminal prosecution of such defendant, the defendant
shall, within the time specified by the court or, where no time is
specified, within thirty days prior to trial, notify the attorney
for the United States and the court in writing. Such notice shall
include a brief description of the classified information.
Whenever a defendant learns of additional classified information he
reasonably expects to disclose at any such proceeding, he shall
notify the attorney for the United States and the court in writing
as soon as possible thereafter and shall include a brief
description of the classified information. No defendant shall
disclose any information known or believed to be classified in
connection with a trial or pretrial proceeding until notice has
been given under this subsection and until the United States has
been afforded a reasonable opportunity to seek a determination
pursuant to the procedure set forth in section 6 of this Act, and
until the time for the United States to appeal such determination
under section 7 has expired or any appeal under section 7 by the
United States is decided.
(b) Failure to Comply. - If the defendant fails to comply with
the requirements of subsection (a) the court may preclude
disclosure of any classified information not made the subject of
notification and may prohibit the examination by the defendant of
any witness with respect to any such information.
Sec. 6. Procedure for cases involving classified information
(a) Motion for Hearing. - Within the time specified by the court
for the filing of a motion under this section, the United States
may request the court to conduct a hearing to make all
determinations concerning the use, relevance, or admissibility of
classified information that would otherwise be made during the
trial or pretrial proceeding. Upon such a request, the court shall
conduct such a hearing. Any hearing held pursuant to this
subsection (or any portion of such hearing specified in the request
of the Attorney General) shall be held in camera if the Attorney
General certifies to the court in such petition that a public
proceeding may result in the disclosure of classified information.
As to each item of classified information, the court shall set
forth in writing the basis for its determination. Where the United
States' motion under this subsection is filed prior to the trial or
pretrial proceeding, the court shall rule prior to the commencement
of the relevant proceeding.
(b) Notice. - (1) Before any hearing is conducted pursuant to a
request by the United States under subsection (a), the United
States shall provide the defendant with notice of the classified
information that is at issue. Such notice shall identify the
specific classified information at issue whenever that information
previously has been made available to the defendant by the United
States. When the United States has not previously made the
information available to the defendant in connection with the case,
the information may be described by generic category, in such forms
as the court may approve, rather than by identification of the
specific information of concern to the United States.
(2) Whenever the United States requests a hearing under
subsection (a), the court, upon request of the defendant, may order
the United States to provide the defendant, prior to trial, such
details as to the portion of the indictment or information at issue
in the hearing as are needed to give the defendant fair notice to
prepare for the hearing.
(c) Alternative Procedure for Disclosure of Classified
Information. - (1) Upon any determination by the court authorizing
the disclosure of specific classified information under the
procedures established by this section, the United States may move
that, in lieu of the disclosure of such specific classified
information, the court order -
(A) the substitution for such classified information of a
statement admitting relevant facts that the specific classified
information would tend to prove; or
(B) the substitution for such classified information of a
summary of the specific classified information.
The court shall grant such a motion of the United States if it
finds that the statement or summary will provide the defendant with
substantially the same ability to make his defense as would
disclosure of the specific classified information. The court shall
hold a hearing on any motion under this section. Any such hearing
shall be held in camera at the request of the Attorney General.
(2) The United States may, in connection with a motion under
paragraph (1), submit to the court an affidavit of the Attorney
General certifying that disclosure of classified information would
cause identifiable damage to the national security of the United
States and explaining the basis for the classification of such
information. If so requested by the United States, the court shall
examine such affidavit in camera and ex parte.
(d) Sealing of Records of In Camera Hearings. - If at the close
of an in camera hearing under this Act (or any portion of a hearing
under this Act that is held in camera) the court determines that
the classified information at issue may not be disclosed or
elicited at the trial or pretrial proceeding, the record of such in
camera hearing shall be sealed and preserved by the court for use
in the event of an appeal. The defendant may seek reconsideration
of the court's determination prior to or during trial.
(e) Prohibition on Disclosure of Classified Information by
Defendant, Relief for Defendant When United States Opposes
Disclosure. - (1) Whenever the court denies a motion by the United
States that it issue an order under subsection (c) and the United
States files with the court an affidavit of the Attorney General
objecting to disclosure of the classified information at issue, the
court shall order that the defendant not disclose or cause the
disclosure of such information.
(2) Whenever a defendant is prevented by an order under paragraph
(1) from disclosing or causing the disclosure of classified
information, the court shall dismiss the indictment or information;
except that, when the court determines that the interests of
justice would not be served by dismissal of the indictment or
information, the court shall order such other action, in lieu of
dismissing the indictment or information, as the court determines
is appropriate. Such action may include, but need not be limited
to -
(A) dismissing specified counts of the indictment or
information;
(B) finding against the United States on any issue as to which
the excluded classified information relates; or
(C) striking or precluding all or part of the testimony of a
witness.
An order under this paragraph shall not take effect until the court
has afforded the United States an opportunity to appeal such order
under section 7, and thereafter to withdraw its objection to the
disclosure of the classified information at issue.
(f) Reciprocity. - Whenever the court determines pursuant to
subsection (a) that classified information may be disclosed in
connection with a trial or pretrial proceeding, the court shall,
unless the interests of fairness do not so require, order the
United States to provide the defendant with the information it
expects to use to rebut the classified information. The court may
place the United States under a continuing duty to disclose such
rebuttal information. If the United States fails to comply with
its obligation under this subsection, the court may exclude any
evidence not made the subject of a required disclosure and may
prohibit the examination by the United States of any witness with
respect to such information.
Sec. 7. Interlocutory appeal
(a) An interlocutory appeal by the United States taken before or
after the defendant has been placed in jeopardy shall lie to a
court of appeals from a decision or order of a district court in a
criminal case 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.
(b) An appeal taken pursuant to this section either before or
during trial shall be expedited by the court of appeals. Prior to
trial, an appeal shall be taken within ten days after the decision
or order appealed from and the trial shall not commence until the
appeal is resolved. If an appeal is taken during trial, the trial
court shall adjourn the trial until the appeal is resolved and the
court of appeals (1) shall hear argument on such appeal within four
days of the adjournment of the trial, (2) may dispense with written
briefs other than the supporting materials previously submitted to
the trial court, (3) shall render its decision within four days of
argument on appeal, and (4) may dispense with the issuance of a
written opinion in rendering its decision. Such appeal and
decision shall not affect the right of the defendant, in a
subsequent appeal from a judgment of conviction, to claim as error
reversal by the trial court on remand of a ruling appealed from
during trial.
Sec. 8. Introduction of classified information
(a) Classification Status. - Writings, recordings, and
photographs containing classified information may be admitted into
evidence without change in their classification status.
(b) Precautions by Court. - The court, in order to prevent
unnecessary disclosure of classified information involved in any
criminal proceeding, may order admission into evidence of only part
of a writing, recording, or photograph, or may order admission into
evidence of the whole writing, recording, or photograph with
excision of some or all of the classified information contained
therein, unless the whole ought in fairness be considered.
(c) Taking of Testimony. - During the examination of a witness in
any criminal proceeding, the United States may object to any
question or line of inquiry that may require the witness to
disclose classified information not previously found to be
admissible. Following such an objection, the court shall take such
suitable action to determine whether the response is admissible as
will safeguard against the compromise of any classified
information. Such action may include requiring the United States
to provide the court with a proffer of the witness' response to the
question or line of inquiry and requiring the defendant to provide
the court with a proffer of the nature of the information he seeks
to elicit.
Sec. 9. Security procedures
(a) Within one hundred and twenty days of the date of the
enactment of this Act, the Chief Justice of the United States, in
consultation with the Attorney General, the Director of Central
Intelligence, and the Secretary of Defense, shall prescribe rules
establishing procedures for the protection against unauthorized
disclosure of any classified information in the custody of the
United States district courts, courts of appeal, or Supreme Court.
Such rules, and any changes in such rules, shall be submitted to
the appropriate committees of Congress and shall become effective
forty-five days after such submission.
(b) Until such time as rules under subsection (a) first become
effective, the Federal courts shall in each case involving
classified information adapt procedures to protect against the
unauthorized disclosure of such information.
Sec. 10. Identification of information related to the national
defense
In any prosecution in which the United States must establish that
material relates to the national defense or constitutes classified
information, the United States shall notify the defendant, within
the time before trial specified by the court, of the portions of
the material that it reasonably expects to rely upon to establish
the national defense or classified information element of the
offense.
Sec. 11. Amendments to the Act
Sections 1 through 10 of this Act may be amended as provided in
section 2076, title 28, United States Code.
Sec. 12. Attorney General guidelines
(a) Within one hundred and eighty days of enactment of this Act,
the Attorney General shall issue guidelines specifying the factors
to be used by the Department of Justice in rendering a decision
whether to prosecute a violation of Federal law in which, in the
judgment of the Attorney General, there is a possibility that
classified information will be revealed. Such guidelines shall be
transmitted to the appropriate committees of Congress.
(b) When the Department of Justice decides not to prosecute a
violation of Federal law pursuant to subsection (a), an appropriate
official of the Department of Justice shall prepare written
findings detailing the reasons for the decision not to prosecute.
The findings shall include -
(1) the intelligence information which the Department of
Justice officials believe might be disclosed,
(2) the purpose for which the information might be disclosed,
(3) the probability that the information would be disclosed,
and
(4) the possible consequences such disclosure would have on the
national security.
Sec. 13. Reports to Congress
(a) Consistent with applicable authorities and duties, including
those conferred by the Constitution upon the executive and
legislative branches, the Attorney General shall report orally or
in writing semiannually to the Permanent Select Committee on
Intelligence of the United States House of Representatives, the
Select Committee on Intelligence of the United States Senate, and
the chairmen and ranking minority members of the Committees on the
Judiciary of the Senate and House of Representatives on all cases
where a decision not to prosecute a violation of Federal law
pursuant to section 12(a) has been made.
(b) The Attorney General shall deliver to the appropriate
committees of Congress a report concerning the operation and
effectiveness of this Act and including suggested amendments to
this Act. For the first three years this Act is in effect, there
shall be a report each year. After three years, such reports shall
be delivered as necessary.
Sec. 14. Functions of Attorney General may be exercised by Deputy
Attorney General, the Associate Attorney General, or a
designated Assistant Attorney General
The functions and duties of the Attorney General under this Act
may be exercised by the Deputy Attorney General, the Associate
Attorney General, or by an Assistant Attorney General designated by
the Attorney General for such purpose and may not be delegated to
any other official.
Sec. 15. Effective date
The provisions of this Act shall become effective upon the date
of the enactment of this Act, but shall not apply to any
prosecution in which an indictment or information was filed before
such date.
Sec. 16. Short title
That this Act may be cited as the ''Classified Information
Procedures Act''.
SECURITY PROCEDURES ESTABLISHED PURSUANT TO PL 96-456, 94
STAT. 2025, BY THE CHIEF JUSTICE OF THE UNITED STATES FOR THE
PROTECTION OF CLASSIFIED INFORMATION
1. Purpose. The purpose of these procedures is to meet the
requirements of Section 9(a) of the Classified Information
Procedures Act of 1980, Pub. L. 96-456, 94 Stat. 2025, which in
pertinent part provides that:
''. . . (T)he Chief Justice of the United States, in consultation
with the Attorney General, the Director of Central Intelligence,
and the Secretary of Defense, shall prescribe rules establishing
procedures for the protection against unauthorized disclosure of
any classified information in the custody of the United States
district courts, courts of appeal, or Supreme Court. . . .''
These procedures apply in all proceedings in criminal cases
involving classified information, and appeals therefrom, before the
United States district courts, the courts of appeal and the Supreme
Court.
2. Court Security Officer. In any proceeding in a criminal case
or appeal therefrom in which classified information is within, or
reasonably expected to be within, the custody of the court, the
court shall designate a court security officer. The Attorney
General or the Department of Justice Security Officer, with the
concurrence of the head of the agency or agencies from which the
classified information originates, or their representatives, shall
recommend to the court persons qualified to serve as court security
officer. The court security officer shall be selected from among
those persons so recommended.
The court security officer shall be an individual with
demonstrated competence in security matters, and shall, prior to
designation, have been certified to the court in writing by the
Department of Justice Security Officer as cleared for the level and
category of classified information that will be involved. The
court security officer may be an employee of the Executive Branch
of the Government detailed to the court for this purpose. One or
more alternate court security officers, who have been recommended
and cleared in the manner specified above, may be designated by the
court as required.
The court security officer shall be responsible to the court for
document, physical, personnel and communications security, and
shall take measures reasonably necessary to fulfill these
responsibilities. The court security officer shall notify the
court and the Department of Justice Security Officer of any actual,
attempted, or potential violation of security procedures.
3. Secure Quarters. Any in camera proceeding - including a
pretrial conference, motion hearing, or appellate hearing -
concerning the use, relevance, or admissibility of classified
information, shall be held in secure quarters recommended by the
court security officer and approved by the court.
The secure quarters shall be located within the Federal
courthouse, unless it is determined that none of the quarters
available in the courthouse meets, or can reasonably be made
equivalent to, security requirements of the Executive Branch
applicable to the level and category of classified information
involved. In that event, the court shall designate the facilities
of another United States Government agency, recommended by the
court security officer, which is located within the vicinity of the
courthouse, as the site of the proceedings.
The court security officer shall make necessary arrangements to
ensure that the applicable Executive Branch standards are met and
shall conduct or arrange for such inspection of the quarters as may
be necessary. The court security officer shall, in consultation
with the United States Marshal, arrange for the installation of
security devices and take such other measures as may be necessary
to protect against any unauthorized access to classified
information. All of the aforementioned activity shall be conducted
in a manner which does not interfere with the orderly proceedings
of the court. Prior to any hearing or other proceeding, the court
security officer shall certify in writing to the court that the
quarters are secure.
4. Personnel Security - Court Personnel. No person appointed by
the court or designated for service therein shall be given access
to any classified information in the custody of the court, unless
such person has received a security clearance as provided herein
and unless access to such information is necessary for the
performance of an official function. A security clearance for
justices and judges is not required, but such clearance shall be
provided upon the request of any judicial officer who desires to be
cleared.
The court shall inform the court security officer or the attorney
for the government of the names of court personnel who may require
access to classified information. That person shall then notify
the Department of Justice Security Officer, who shall promptly make
arrangements to obtain any necessary security clearances and shall
approve such clearances under standards of the Executive Branch
applicable to the level and category of classified information
involved. The Department of Justice Security Officer shall advise
the court in writing when the necessary security clearances have
been obtained.
If security clearances cannot be obtained promptly, personnel in
the Executive Branch having the necessary clearances may be
temporarily assigned to assist the court. If a proceeding is
required to be recorded and an official court reporter having the
necessary security clearance is unavailable, the court may request
the court security officer or the attorney for the government to
have a cleared reporter from the Executive Branch designated to act
as reporter in the proceedings. The reporter so designated shall
take the oath of office as prescribed by 28 U.S.C. Sec. 753(a).
Justices, judges and cleared court personnel shall not disclose
classified information to anyone who does not have a security
clearance and who does not require the information in the discharge
of an official function. However, nothing contained in these
procedures shall preclude a judge from discharging his official
duties, including giving appropriate instructions to the jury.
Any problem of security involving court personnel or persons
acting for the court shall be referred to the court for appropriate
action.
5. Persons Acting for the Defendant. The government may obtain
information by any lawful means concerning the trustworthiness of
persons associated with the defense and may bring such information
to the attention of the court for the court's consideration in
framing an appropriate protective order pursuant to Section 3 of
the Act.
6. Jury. Nothing contained in these procedures shall be construed
to require an investigation or security clearance of the members of
the jury or interfere with the functions of a jury, including
access to classified information introduced as evidence in the
trial of a case.
After a verdict has been rendered by a jury, the trial judge
should consider a government request for a cautionary instruction
to jurors regarding the release or disclosure of classified
information contained in documents they have reviewed during the
trial.
7. Custody and Storage of Classified Materials.
a. Materials Covered. These security procedures apply to all
papers, documents, motions, pleadings, briefs, notes, records of
statements involving classified information, notes relating to
classified information taken during in camera proceedings, orders,
affidavits, transcripts, untranscribed notes of a court reporter,
magnetic recordings, or any other submissions or records which
contain classified information as the term is defined in Section
1(a) of the Act, and which are in the custody of the court. This
includes, but is not limited to (1) any motion made in connection
with a pretrial conference held pursuant to Section 2 of the Act,
(2) written statements submitted by the United States pursuant to
Section 4 of the Act, (3) any written statement or written notice
submitted to the court by the defendant pursuant to Section 5(a) of
the Act, (4) any petition or written motion made pursuant to
Section 6 of the Act, (5) any description of, or reference to,
classified information contained in papers filed in an appeal,
pursuant to Section 7 of the Act and (6) any written statement
provided by the United States or by the defendant pursuant to
Section 8(c) of the Act.
b. Safekeeping. Classified information submitted to the court
shall be placed in the custody of the court security officer who
shall be responsible for its safekeeping. When not in use, the
court security officer shall store all classified materials in a
safe or safe-type steel file container with built-in, dial-type,
three position, changeable combinations which conform to the
General Services Administration standards for security containers.
Classified information shall be segregated from other information
unrelated to the case at hand by securing it in a separate security
container. If the court does not possess a storage container which
meets the required standards, the necessary storage container or
containers are to be supplied to the court on a temporary basis by
the appropriate Executive Branch agency as determined by the
Department of Justice Security Officer. Only the court security
officer and alternate court security officer(s) shall have access
to the combination and the contents of the container unless the
court, after consultation with the security officer, determines
that a cleared person other than the court security officer may
also have access.
For other than temporary storage (e.g., brief court recess), the
court security officer shall insure that the storage area in which
these containers shall be located meets Executive Branch standards
applicable to the level and category of classified information
involved. The secure storage area may be located within either the
Federal courthouse or the facilities of another United States
Government agency.
(c) Transmittal of Classified Information. During the pendency of
a trial or appeal, classified materials stored in the facilities of
another United States Government agency shall be transmitted in the
manner prescribed by the Executive Branch security regulations
applicable to the level and category of classified information
involved. A trust receipt shall accompany all classified materials
transmitted and shall be signed by the recipient and returned to
the court security officer.
8. Operating Routine.
a. Access to Court Records. Court personnel shall have access to
court records only as authorized. Access to classified information
by court personnel shall be limited to the minimum number of
cleared persons necessary for operating purposes. Access includes
presence at an in camera hearing or any other proceeding during
which classified information may be disclosed. Arrangements for
access to classified information in the custody of the court by
court personnel and persons acting for the defense shall be
approved in advance by the court, which may issue a protective
order concerning such access.
Except as otherwise authorized by a protective order, persons
acting for the defendant will not be given custody of classified
information provided by the government. They may, at the
discretion of the court, be afforded access to classified
information provided by the government in secure quarters which
have been approved in accordance with Sec. 3 of these procedures,
but such classified information shall remain in the control of the
court security officer.
b. Telephone Security. Classified information shall not be
discussed over standard commercial telephone instruments or office
intercommunication systems.
c. Disposal of Classified Material. The court security officer
shall be responsible for the secure disposal of all classified
materials which are not otherwise required to be retained.
9. Records Security.
a. Classification Markings. The court security officer, after
consultation with the attorney for the government, shall be
responsible for the marking of all court documents containing
classified information with the appropriate level of classification
and for indicating thereon any special access controls that also
appear on the face of the document from which the classified
information was obtained or that are otherwise applicable.
Every document filed by the defendant in the case shall be filed
under seal and promptly turned over to the court security officer.
The court security officer shall promptly examine the document and,
in consultation with the attorney for the government or
representative of the appropriate agency, determine whether it
contains classified information. If it is determined that the
document does contain classified information, the court security
officer shall ensure that it is marked with the appropriate
classification marking. If it is determined that the document does
not contain classified information, it shall be unsealed and placed
in the public record. Upon the request of the government, the
court may direct that any document containing classified
information shall thereafter be protected in accordance with Sec. 7
of these procedures.
b. Accountability System. The court security officer shall be
responsible for the establishment and maintenance of a control and
accountability system for all classified information received by or
transmitted from the court.
10. Transmittal of the Record on Appeal. The record on appeal, or
any portion thereof, which contains classified information shall be
transmitted to the court of appeals or to the Supreme Court in the
manner specified in Sec. 7(c) of these procedures.
11. Final Disposition. Within a reasonable time after all
proceedings in the case have been concluded, including appeals, the
court shall release to the court security officer all materials
containing classified information. The court security officer
shall then transmit them to the Department of Justice Security
Officer who shall consult with the originating agency to determine
the appropriate disposition of such materials. Upon the motion of
the government, the court may order the return of the classified
documents and materials to the department or agency which
originated them. The materials shall be transmitted in the manner
specified in Sec. 7(c) of these procedures and shall be accompanied
by the appropriate accountability records required by Sec. 9(b) of
these procedures.
12. Expenses. Expenses of the United States Government which
arise in connection with the implementation of these procedures
shall be borne by the Department of Justice or other appropriate
Executive Branch agency.
13. Interpretation. Any question concerning the interpretation of
any security requirement contained in these procedures shall be
resolved by the court in consultation with the Department of
Justice Security Officer and the appropriate Executive Branch
agency security officer.
14. Term. These procedures shall remain in effect until modified
in writing by The Chief Justice after consultation with the
Attorney General of the United States, the Director of Central
Intelligence, and the Secretary of Defense.
15. Effective Date. These procedures shall become effective
forty-five days after the date of submission to the appropriate
Congressional Committees, as required by the Act.
Issued this 12th day of February, 1981, after taking into account
the views of the Attorney General of the United States, the
Director of Central Intelligence, and the Secretary of Defense, as
required by law. Warren E. Burger
Chief Justice of the
United States