PUBLIC LAW 96-456 AN ACT TO PROVIDE CERTAIN PRETRIAL TRIAL AND APPELLATE PROCEDURES FOR CRIMINAL CASES INVOLVING CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100010007-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 21, 2016
• Document Release Date: October 23, 2008
• Sequence Number: 7
• Publication Date: October 15, 1980
• Content Type: REGULATION

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PUBLIC LAW 96-456-OCT. 15, 1980 94,STAT. 2025
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. (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 he 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.
Public Law 96-456
96th Congress
An Act
W1SLATIYE COUNS'LL
FILE COPY
SEC. 2. 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.
PROTECTIVE ORDERS
SEC. 3. 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. 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
Classified
Information
Procedures Act.
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94 STAT. 2026 PUBLIC LAW 96-456-OCT. 15, 1980
inforln tlon dtFl no; prove. The court may permit the United
States to line # equ afor such authorization in the form of a
written stateffa4 i1 to be inspected by the court alone. If the court
enters 4aa+ orders 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.
NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE CLASSIFIED
INFORMATION
18 USC app. SEC. 5. (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.
Classified
information, use,
relevance, or
admissibility.
18 USC app.
Classified
information at
issue,
identification.
PROCEDURE FOR CASES-INVOLVING CLASSIFIED INFORMATION
SEC. 6. (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 determina-
tions 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 com-
mencement 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
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PUBLIC LAW 96-456-OCT. 15, 1980 94 STAT. 2027
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 form 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 subsec-
tion (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 INFOR-
MATION.-(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 sum-
mary 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 informa-
tion. 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 -deter-
mination prior to or during trial.
(e) PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMATION BY
DEFENDANT, RELIEF FOR DEFENDANT WHEN UNITED STATES OPPOSES
DlscLOsuRE.-(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 para-
graph (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,
National
security damage,
certification.
Indictment or
information,
dismissal.
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94 STAT. 2028 PUBLIC LAW 96-456-OCT. 15, 1980
Rebuttal
information,
disclosure.
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) RECIPRocrrY.-Whenever the court determines pursuant to
subsection (a) that classified information may be disclosed in connec-
tion 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 subsec-
tion, 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.
18 USC app. SEC. 7. (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.
INTRODUCTION OF CLASSIFIED INFORMATION
SEC. 8. (a) CLASSIFICATION STATUS.-Writings, recordings, and pho-
tographs containing classified information may be admitted into
evidence without change in their classification status.
(b) PRECAUTIONS BY COURT.-The court, in order to prevent unnec-
essary disclosure of classified information involved in any criminal
proceeding, may order admission into evidence of only part of a
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PUBLIC LAW 96-456-OCT. 15, 1980 94 STAT. 2029
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. Follow-
ing 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. (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 dis-
closure of any classed 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 adopt procedures to protect against the unauthorized
disclosure of such information.
IDENTIFICATION OF INFORMATION RELATED TO THE NATIONAL DEFENSE
SEC. 10. 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.
Rules.
18 USC app.
Submittal to
congressional
committees.
Notification of
defendant.
18 USC app.
S. 11. Sections 1 through 10 of this Act may be amended as 18 USC app.
provided in section 2076, title 28, United States Code.
SEC. 12. (a) Within one hundred and eighty days of enactment of
this Act, the Attorney General shall issue guidelmes 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 Attorn ey General, there is a possibility that
classed 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
Prosecution of
certain
violations.
18 USC app.
Transmittal to
congressional
committees.
Nonprosecut'on,
written findings.
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94 STAT. 2030 PUBLIC LAW 96-456-OCT. 15, 1980
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.
18 USC app. SEC. 13. (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 Intelli-
gence 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 commit-
tees of Congress a report concerning the operation and a?fectiveness
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.
FUNCTIONS OF ATTORNEY GENERAL MAY BE EXERCISED BY DEPUTY
ATTORNEY GENERAL OR A DESIGNATED ASSISTANT ATTORNEY GENERAL
SEC. 14. The functions and duties of the Attorney General under
this Act may be exercised by the Deputy 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.
18 USC app. SEC. 15. 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.
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PUBLIC LAW 96-456-OCT. 15, 1980 94 STAT. 2031
SHORT TITLE
SEc. 16. That this Act may be cited as the "Classified Information
Procedures Act".
Approved October 15, 1980.
HOUSE REPORTS: No. 96-831, Pt. I accompanying H.R.4736 (Permanent Select
Comm. on Intelligence), No. 96-831, Pt. 2 accompanying H.R.
4736 (Comm. on the Judiciary), and No. 96-1436 (Comm. of
Conference).
SENATE REPORT No. 96-823 (Comm. on Judiciary). /
CONGRESSIONAL RECORD, Vol. 126 (1980):
June 25, considered and passed Senate.
Sept. 22, H.R. 4736 considered and passed House; passage vacated and S. 1482, /
amended, passed in lieu.
Sept. 30,, Senate agreed to conference report.
Oct. 2, House agreed to conference report.
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