HEARINGS BEFORE THE SUBCOMMITTEE ON CIVIL AND CRIMINAL JUSTICE OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-SIXTH CONGRESS SECOND SESSION ON S.1482

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100010020-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 192
• Document Creation Date: December 21, 2016
• Document Release Date: October 23, 2008
• Sequence Number: 20
• Publication Date: February 7, 1980
• Content Type: OPEN SOURCE

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GRAYMAIL, S. 1482
HEARING
SUBCOMMITTEE ON CRIMINAL JUSTICE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SIXTH CONGRESS
SECOND SESSION
ON
S. 1482
Serial No. 96-57
U.S. GOVERNMENT PRINTING OFFICE
63-5150 . WASHINGTON : 1980
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COMMITTEE ON THE JUDICIARY
EDWARD M. KENNEDY, Massachusetts, Chairman
BIRCH BAYH, Indiana
ROBERT C. BYRD, West Virginia
JOSEPH R. BIDEN, JR., Delaware
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona
PATRICK J. LEAHY, Vermont
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama
STROM THURMOND, South Carolina
CHARLES MCC. MATHIAS, JR., Maryland
PAUL LAXALT, Nevada
ORRIN G. HATCH, Utah
ROBERT DOLE, Kansas
THAD COCHRAN, Mississippi
ALAN K. SIMPSON,' Wyoming
STEPHEN BREYER, Chief Counsel
EMORY SNEEDEN, Minority Chief Counsel
SUBCOMMITTEE ON CRIMINAL JUSTICE
JOSEPH R. BIDEN, JR., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts
JOHN C. CULVER, Iowa
DENNIS DECONCINI, Arizona
PATRICK J. LEAHY, Vermont
CHARLES MCC. MATHIAS, JR., Maryland
THAD COCHRAN, Mississippi
PAUL LAXALT, Nevada
ORRIN G. HATCH, Utah
MICHAEL GELACAK. Staff Director
MICHAEL GITTENSTEIN, Chief Counsel
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CONTENTS
? Page
Opening statement of Senator Biden____________________________________
1
Heymann, Philip B., Criminal Division, Department of Justice -----------
2
Panel of experts :
Rushforth, Brent N., Deputy General Counsel, Department of Defense.;
Daniel B. Silver, General Counsel, Central Intelligence Agency, and
Daniel C. Schwartz, General Counsel, National Security Agency____
25
Halperin, Morton H., Center for National Security Studies, accompanied by
Allan Adler--------------------------------------------------------
42
Scheininger, Michael--------------------------------------------------
53
Panel representing the ABA :
Silbert, Earl J., and Professor William W. Greenhalgh, Georgetown
Law Center----------------------------------------------------
62
Greenhalgh, Prof. William W_________________________________________
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Halperin, Morton H--------------------------------------------------
48
Heymann, Philip B--------------------------------------------------
12
Rushforth, Brent N---------------------------------------------------
35
Scheininger, Michael--------------------------------------------------
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Schwartz, Daniel C---------------------------------------------------
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Silbert, Earl 3--------------------------------------------------------
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Silver, Daniel B------------------------------------------------------
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S.1482---------------------------------------------------------------
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Additional submissions of Philip A. Lacovara___________________________
100
Additional submissions of Morton Halperin_____________________________
168
Prepared statement of Association of Former Intelligence Officers --------
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GRAYMAIL, S. 1482
THURSDAY, FEBRUARY 7, 1980
U.S. SENATE,
SUBCOMMITTEE ON CRIMINAL JUSTICE,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 10:07 a.m., in room 35, of the Russell Sen-
ate Office Building, Senator Joseph R. Biden, Jr. (chairman of the
subcommittee) presiding.
Present: Senator Biden.
Also present : Mark Gittenstein, chief counsel, and Edna Panaccione,
chief clerk.
Senator BmEN. This hearing will come to order.
OPENING STATEMENT OF SENATOR BIDEN
The Subcommittee on Criminal Justice opens 1 day of hearings
today on legislation, S. 1482. Graymail legislation and the problem of
"graymail" has been the subject of extensive committee and staff work
on both the House and Senate Intelligence Committees and in the
Department of Justice. Therefore, this hearing. culminates over 2
years of exploratory work on this most vexing problem which has
both threatened the national security and the rule of law.
I and others present in this room have, particularly Phil Heymann,
have spent many hours discussing this problem since it first surfaced
sometime ago. I delivered a speech at Bowdoin College in Maine in
November of 1977 outlining what I saw as the concerns and suggesting
the need for legislation. We also issued a report in the Intelligence
Committee dealing with the subject, but, I will not go into those find-
ings now or repeat the essential points of that report.
The fact that such diverse parties as the Criminal Division of the
Department of Justice, the intelligence agencies, the American Civil
Liberties Union, The Association of Former Intelligence Officers and
the American Bar Association can reach a consensus on this problem
has been quite heartening to me as a legislator. A great deal of the
credit for the success lies with our first witness, Phil Heymann, Assist-
ant Attorney General for the Criminal Division, but others in this
room deserve a great deal of credit also.
In summary the purpose of this hearing is to attempt to flesh out
the remaining areas of disagreement and to assure that we indeed ,
do have a basic consensus for proceedings. I think that we will find
four or five areas where work will be necessary-issues like the
standard of admissibility, the Jencks Act and the reporting require-
ments are three that come to mind immediately.
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However, I view these and other outstanding issues as resolvable.
Indeed, I believe that the other members of the subcommittee will find,
as I have, that with all of the complicated and controversial intelli-
gence-related legislative issues facing us this year-a CIA and .FBI
charter, changes in the Hughes-Ryan requirements, new espionage
statutes, and modification of the Freedom of Information Act-that
have been considered, graymail may be the one where there is a real
consensus and we can move immediately.
Consensus is possible because all sides realize that action is essential.
National. security considerations require a graymail bill to facilitate
espionage prosecutions while accountability for intelligence agencies
requires that graymail procedures be in place to protect against pos-
sible criminal acts by intelligence agents. .
I would also like to point out that although I see this as the area
where we are most likely to be able to move in this Congress, I don't
want to mislead anyone as to my view on other unrelated matters.
I think we must move on a charter and I think that the suggestions
coming from some quarters of the Congress and some quarters of the
administration are uncalled for, but that is for another time, another
debate and another subject. I just didn't want anyone of the press
who may be here to read from my assertion that I think this is the
area we can move most rapidly on, that.I am willing to abandon move-
ment on the other subjects, nor to imply that any of the witnesses wish
to abandon movement.
I would like to suggest, as I know you all are very busy, and all have
spent a great deal of time on this subject, to proceed in the following
manner. First, I would like to ask. Phil Heymann of the Criminal
Division of the Department of Justice to be our first witness and then,
Phil, with your permission, I will question you because I know you
have other committees that have great interest in your activities these
days, in an editorial sense, and then let you go, if you would like, and
then call as a panel four witnesses and then a second, panel after that
of two additional witnesses.
Seated at the table also. are Mr. Brent Rushforth, Deputy General
Counsel, Department of Defense, Dan Silver, General Counsel of the
Central Intelligence Agency, and Daniel Schwartz, General Counsel,
National Security Agency. Also, I have read all of your statements and
they will be submitted in full for the record and if you could sum-
marize them, or proceed in any way you would like. Phil Heymann.
STATEMENT OF PHILIP B. HEYMANN, CRIMINAL DIVISION,
DEPARTMENT OF JUSTICE
Mr. HEYMANN. Thank you, Mr. Chairman. I think I would like to
just do three things in an opening statement and then turn to your ques-
tions. The first is to give the chairman credit for his efforts which were
indeed pioneering in addressing the problems of rising criminal prose-
cutions involving sensitive national security information.
As you said, at present there is a measure of agreement among
groups as diverse as the American Civil Liberties Union. I would
have said, under any other context, that groups as diverse as those
of us at this table testifying-the American Civil Liberties Union,
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the American Bar Association, Senators from both parties and from
all sectors of the political spectrum-is an unusual situation and it
is one for which you deserve a great deal of credit.
Hearings that you held as chairman of the Secrecy and Disclosure
Subcommittee of the Senate Select Intelligence Committee provided
an extensive examination of the graymail problem and set the ground-
work for a legislative response. We have, as you know worked with
you and your staff, Congressman Murphy, the ACLT, the intelli-
gence community, and the Intelligence Committees to devise legis-
lation that can provide procedures for orderly and equitable resolu-
tion of issues in criminal cases that involve national security
considerations.
The striking thing about the present situation is the extent to which
there is agreement on the issues. The core elements of the chairman's
bill are, r believe, widely agreed upon. Let me just review them : A
procedure for securing pretrial rulings from the court to determine
whether classified information may be disclosed by the defendant at
a trial or at a pretrial proceeding, No. 1. No. 2, in your bill, Senator
Biden, and widely agreed upon, are provisions for the use of alter-
natives for the disclosure. of specific items of classified information,
summaries, substitutions, admissions by the Government, but always
with due regard for the defendant's right to a fair trial. No. 3, provi-
sion of alternative measures other than dismissal of the prosecution
where this is compatible with the defendant's right to a fair trial and
substitutions don't work. No. 4, authorization of interlocutory appeals
by the Government of district court rulings relating to the disclosure
of classified information so we don't find ourselves again in the situa-
tion we found ourselves in the ITT case where we disagree with the
ruling but have no choice other than to either compromise the infor-
mation or dismiss the case for good.
No. 5, provision of appropriate security measures to safeguard
against the compromise of classified information disclosed to the court
and defendants. I was going to cite a sixth agreed item. It is one that
not everybody agrees with, but. I would like to commend your bill
for including some form of limited exception to the Jencks Act dis-
closure requirements. I note that the ACLU disagrees with that pro-
vision.
This set of widely agreed upon procedures would go far to remedy
problems that we now have in the graymail area. There will always
be irresolvable problems that will cause us to dismiss some cases.
Let me go finally, Mr. Chairman, to the areas where we disagree
with your bill and urge modifications. They are on the whole relatively
minor matters. The areas of agreement far exceed the areas of dis-
agreement. I believe that the ABA, over this past weekend, proposed
a standard more similar to ours than to yours for determining when
classified information has to be introduced at trial. We believe that the
right standards, with an appropriate amount of ambiguity built into
it, is that classified information should not have to be disclosed unless
the court finds it "relevant and material to an element of the offense,
or legally cognizable defense."
I haven't seen the ABA resolution, but I believe the ABA came out
in the same place. Our standard, which just gives a court a little bit
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of margin in situations where it is difficult to say something is logically
irrelevant, but it is not important in any way to the defense and this
is obvious. Our provision gives the court a little bit of leeway in those
situations, and in doing so it corresponds closely but in a much more
modest way to the protection that is given information about the in-
formants by the Supreme Court's Roviaro case. In that situation, the
Supreme Court would deny disclosure unless it is either relevant and
helpful or essential to the defense. We are not asking for anything as
sizable as that. We are asking for just a little bit of leeway for the
courts when a matter may be of extremely marginal relevance.
The materiality standard is the language used in rule 16 to govern
discovery in a criminal trial. I should also mention before moving on
that in the area of testimony as to the prior record of a woman who is
the victim of -rape, the courts give considerably more leeway than
either in the informant's situation or a fortiori under the standard we
propose- in allowing the court to forbid the disclosure of evidence as
to the sexual history of the victim of rape. That is a statute passed by
Congress and put into the rules of evidence.
Number 2, we have problems which we regard as primarily technical
with the way S. 1482 requires reciprocity, and its bill of particulars
provisions. We think that the notion of a bill of particulars is a techni-
cal notion that is misconceived in this area. If the defendant wants a
bill of particulars and if it is appropriate, the court can grant it under
rule 7f already. We are worried about what a court will require under
S. 1482's provisions. We don't know how far it will go, what it will
mean. It is not clear to us. The judges will feel free to tailor some re-
ciprocal obligation on the Department of Justice in such a way that it
simply be fair. In such a way that the courts say, if a defendant has had
to open his hand and show something to the prosecution, the prosecu-
tion ought to reciprocally open its hand to about the same extent.
All we want there is something that is written that gives the court
leeway for fairness and your bill indeed has a phrase in there that is
very helpful in that regard. The court is to consider, "the interest of
fairness," and it doesn't bind the court to bills of particulars or any-
thing else. The law bills the particulars as a rather arcane law that
nobody knows $hat to make of.
Finally, in the major category and then for anything else I think I
will just pass-we, are concerned about the reporting requirements in
section 12(b) of S. 1482. There are concerns that come out of three di-
rections. One direction is obviously that in some cases the matter that
will concern us and cause us not to proceed with a case will be of the
most sensitive kind such as the name of an informant and we will be
reluctant and concerned about disclosure.
The second ground is the worry that goes to prosecutorial discretion.
The notion is that the executive branch should be making prosecutorial
calls. The third problem is simply a technical one of applying a report-
ing requirement at all. There are cases,,and it is perhaps the more com-
mon type of case, in which the decision not to prosecute turns on a
variety of factors : The evidence is somewhat weak; there is a national
security graymail issue in it; we are worried about another defense
that may be raised. A variety of factors enter into it. It is a little bit
hard to picture exactly how the reporting requirement will apply to
these types of matter.
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Again, we are not urging anything dramatically different on report-
ing. What we are urging is that it be kept somewhat informal with
the committee. That it be kept oral rather than written, and that it be
kept periodic rather than on the occasion of every failure to prosecute.
I am personally required to approve every failure to prosecute on
national security grounds and I do that whenever we fail to prosecute
on national security grounds. Nobody else can approve that decision. I
think I welcome some kind of informal relationship with the commit-
tees where we would keep you quite fully informed as to the factors and
cases that went into that decision, but we urge informality, as the
House Intelligence Committee itself determined in the last week or
two.
Senator Biden, any more minor matters are covered in our rather
long testimony and I will leave them there.
Senator BIDEN. Thank you very much. Let me begin by speaking to
the last area of disagreement mentioned, the reporting requirement.
One of the conclusions I reached when looking at the damage assess-
ment file of cases in the past, was that not only was legislation neces-
sary but much of the need of the legislation could be eliminated by a
thorough interagency reporting requirement between the FBI, Justice
Department, and the CIA. I should emphasize that only for purposes
of this particular question that those damage assessment files are all
prior to your holding this office and prior to this administration. I
should also emphasize that there has been a good deal of cooperation
between your Department and the Intelligence Committee and in fact,
all of the committees in the Congress. What we found is, as you will
recall from the report which you have discussed, is that we ended up
a lot of times with cases being dropped because they weren't fully
explored. This was because there was a reluctance on the part of one
agency to come forward, possibly with good reason, with all the infor-
mation and when it got to your desk or your predecessor's desk, it was
too much trouble to dial the phone. That was the biggest problem they
had.
So that a lot of cases seem to me to be written off because the only
thing you'd end up on your desk with was an assertion that CIA
doesn't want to disclose the following information. Obviously the De-
partment has its hands full. So, it was my judgment that things were
written off. Not in a cavalier way, not because there was a disregard
for prosecuting people, but because of the press of time.
So, the whole reason why we wrote the reporting requirement in the
first place was to deal with that question and that concern and one
other : There is a concern that on occasion it is possible that case would
not be prosecuted because of potential political embarrassment not
because of national security reasons.
So that what you are suggesting to us now is that the requirement
that is written into S. 1482 may be too stringent, possibly unnecessary,
and that you want to do it more informally. My concern about the
informality is that informality tends not to have a regularity to it.
How do we know what to ask you for unless you tell us in a regularized
fashion what you haven't done.
Do you understand the point I am driving at?
Mr. HEYMANN. Yes. That isn't a hopeless situation, Senator Biden.
I would like to have time to get back to the committee on it that we
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could, for example, advise you that in the following five matters, or
that during the last quarter, I signed off on five matters. There wouldn't
be five in a quarter incidentally. It is many fewer than that.
It would bmore like five in a year probably than five in a quarter.
But, I could give you-I would like to consider it that I could give you
notice of that with some general description of the matter and then
the committee could ask for a hearing, in executive session with an
oral report on exactly what was involved, how far it was pursued,
why no case went forward, were there other possibilities and why
weren't they exercised.
Senator BIDEN. Obviously there is a willingness on your part to
cooperate in this matter. What I am a little confused about is why
there would be a willingness to cooperate if communicating orally, but
a reluctance to do so in writing. We say the findings shall include the
intelligence information that the Department thought might be dis-
closed; the purpose of the information, the probability that the infor-
mation would be disclosed and the possible consequences.
We do not ask for a specific format. You could answer by saying that
the intelligence information that would have been disclosed related to
the ABC system that we have in place in Xanadu and the purpose for
which it might be disclosed would be to compromise an agent in
Xanadu and the possible consequences would be that the loss of life of
the agent and that is it.
I just don't know why you would be willing to tell us that verbally,
and reluctant to put that in writing.
Mr. HEYMANN. We work that way within the executive branch,
Senator Biden. Let me give you a close analogy and then an even closer
one. On highly sensitive matters within the executive branch, I will
only convey them orally to the Attorney General. I am not talking
about national security matters, but, if there is an investigation that
is like the recent one that has leaked, I will try to be very careful about
the use of documents which can themselves get out and I am worried
that in that case it may have not been documents that got out.
Now, to come very close to the point, when Dan Silver wants to tell
me that there is a matter that involves the potential for criminal
prosecution coming out of the CIA, and that it may have serious na-
tional security problems but we ought to explore it, he sends over to me
a memo that is almost unintelligibly vague inviting a set of oral com-
munications that then take place to fill out all the facts. We are very
careful about putting information we want to keep secure into writ-
ten form rather than oral form. It is not in terms of keeping a record,
it is in terms of sending information back and forth.
Senator BIDEN. For the record I should-I have been saying us, I am
sort of changing hats here. I am mentioning Intelligence Committee.
The record should be clear. I am not suggesting nor does this legislation
suggest that you would report to this subcommittee or to the Judiciary
Committee, I am talking only of the Intelligence Committee.
Mr. HEYMANN. That is obviously a separate problem, the more com-
mittees, the more concern we have.
Senator BIDEN. Yes, but I want to make clear what we are talking
about here. Well, I understand your concern. I don't think I share it
as fully as you would like me to, but let me ask you one more question
on that point.
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The House committee in their bill went a little further in your direc-
tion. I don't think it altered the written requirement portion, but it
required a yearly summary of the cases that you have decided not to
move on. I assume you have the same objection to that?
Mr. HEYMANN. Well, a periodic summary is less burdensome to us
than a summary when every case comes up, but otherwise, I suppose
the problems are much the same. I have not, Senator Biden, looked
closely at where the House committee ended up on this one.
Senator BiDEN. I don't want to belabor the point, and we can try to
work something out, but the crux of the difficulty is written versus
oral in the reporting side. Not the question of sharing the information
with the committee, but it is the manner in which it would be shared?
Mr. HEYMANN. That is correct. Excuse me. The House provision
said the Attorney General shall report to the select committee of the
House once each year concerning the operation effectiveness of this
act. Such reports shall include summaries of those cases in which a
decision not to prosecute or not to continue a prosecution was made
because of the possibility of disclosure of national security matters.
So it is much the same thing, but on an annual basis.
Senator BmEN. Well, I could quite frankly see that if there were an
annualized requirement that you could orally come and make that.
But, we would end up with a written record in the sense that there
would be a reporter who would sit there and take this down.
Mr. HEYMANN. It is my understanding that that has been the way.
I think perhaps more on the House side, with the House Intelligence
Committee.
Senator BIDEN. Well that has been the way the Intelligence Com-
mittee operates on our side too, generally.
Mr. HEYMANN. We have freely come up, whenever asked, and you
are asking that there be some system so that you could know when
to ask, and I think we could devise such a system. Whenever asked we
could come up and talk freely and fully about the reasons for not fol-
lowing through on a prosecution.
Senator BIDEN. To make it very clear, and this is not-I don't say
this in a partisan vein at all and I really mean this. I have no problem
with the way in which the intelligence community, whether it is De-
fense, NSA, CIA, whomever, the Justice Department generally, FBI,
has responded to the inquiries of our Intelligence Committee.
I think that is because there are people heading all of those agencies
now and a national. mood the last several years which has been very
clear that that information would, could, and should be shared with
an oversight committee. So I am happy with that. My concern in this
area and in the other intelligence-related areas is that times change.
I don't think the principle of having to share that information with us
should change as the mood changes, and the leadership changes. The
same President may change his mind.
I don't like the idea of the Congress being in a position of operating
in this area at the pleasure of the Executive. I have no problem with
the way in which the Executive has exercised his pleasure so far. I
hope we can solve the problem of you reporting all of the cases which
are not prosecuted. We are more likely to exercise our oversight if it is
done at one time with all the cases. The practical problem we are going
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to have, the chairman of the Intelligence Committee saying, "Well,
look, we can't get a quorum or which one of you guys will sit in here
and hear this issue. We are almost as busy as some of you."
So I see that as a positive movement possibly. That it be a single
shot but that you must-I just want to make sure and this is a very
important area of the legislation as far as I am concerned. I want to
be sure that I understand what you are saying; that is, you don't have
a reluctance for there to be a requirement in the law that all the cases
in which prosecution is declined be brought to the attention, at some
point, sometime, in some fashion, to the relevant committee in question,
the Intelligence Committee. Am I correct about that?
Mr. HEYMANN. I didn't quite go that far, Senator Biden.
Senator BIDEN. Well, that is what I am trying
Mr. HEYMANN. Simply because it makes a great deal of difference
if it is informal rather than formal to us, but I would have to go back
and I would have to talk to the Attorney General and I would also
have to ask my colleagues here to explore it. My own personal reaction
is not one of concern with that, but I would have to go back and talk
to other people about it.
Senator BIDEN. Fine. That is fair enough. But I just want to make
sure that you understand my concern.
Mr. HEYMANN. Yes.
Senator BIDEN. So we do have a basis for discussing it. I am inter-
ested in insuring that all the cases in which prosecution is declined,
be made known to the Intelligence Committee at some point at some
time. Otherwise, we don't know what to ask. I am not married to the
written requirement procedure.
I can understand the, executive branch's concern about leaks and
papers flowing in the wrong direction, but that once you do come
before the relevant committee, and I mean one, that there be a record
and that we be able to ask you and you be required to answer the ques-
tions orally which I was asking heretofore to be done in a written
fashion.
So those two elements are the important elements of the reporting
requirement to me. I like this way best. I think it is the most orderly.
It meets the needs that I think must be addressed best but I am not
married to that and I would like very much for you to pursue that.
Those two points.
Mr. HEYMANN. We will get back to you or your staff, Senator Biden,
within a week on that.
Senator BrnEN. Now, I am sorry to hold you so long, but the Justice
Department has argued long and hard for amendment to the Jencks
Act.
Mr. HEYMANN. And the ABA apparently joined us over the week-
end. It makes us somewhat less lonely than we have been.
Senator BrnEN. Could you tell how Justice envisions the provisions
in the bill would work in practice?
Mr. HEYMANN. Senator Biden, I 'could and I will, but let me point
out that Earl Silbert who you have appearing later in the morning was
the moving spirit, as far as I know, without any detailed consultation
with the Department of Justice, in.working out a compromise in'the
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ABA that rejects our provision. Our provision is written in terms of
the judge's discretion to refuse to disclose consistent information from
a prior statement.
The ABA rejects that and it adopts instead a different term that
gives some protection to national security information and consider-
able protection to the defendant's right to the impeachment value of a
Jencks statement. I would not be inclined to quarrel with the ABA's
change there.
Senator BIDEN. Is that to say you will agree with Mr. Silbert's testi-
mony and so I could ask him that question?
Mr. HEYMANN. I think that is correct. But, they have changed the
provision in a way that continues to give protection in national security
matters. They find technical difficulty with the language "consistent"
that we have used, just as we find technical difficulty with the language
concerning bills of particulars. The ABA is at present a group that is
not enthusiastic about prosecutorial powers. The ABA has a substitute
provision. It seems to me to be as good as ours and probably better
and I think I would move to their provision.
Senator BIDEN. All right, OK.
Mr. HEYMANN. And you have Mr. Silbert coming later this morning,
i understand.
Senator BmEN. Yes, he is. Section 4 of the bill authorizes the Gov-
ernment to delete certain items and summarize a substitute for others.
Now, could you tell us for the record why this is needed and does it
go beyond what is permitted in the Federal rules of criminal pro-
cedure, rule 16?
Mr. HEYMANN. Well the issue of deletions and summaries can come
up in either of two places. It can come up in the context of discovery
where perhaps rule 16 would authorize it and perhaps it wouldn't.
It can also come up in terms of what can be used at trial by the defend-
ant who has already gained access through discovery or himself had
information.
There is no specific rule in the Federal rules of criminal procedure
that deals with the latter situation although judges have allowed it as
part of a common law power of some sort.
As you know, Senator Biden, in many ways this entire bill codifies,
regularizes, and makes predictable what many, including the Depart-
ment of Justice, would argue is largely within the power of the courts
now. The trouble is it is not predictable. It is not regular. It depends
for a defendant on what court he happens to be before. It depends for
us on what court, what time.
What those provisions do seem to me to be, perhaps, are the wisest
single central part of a bill that I think is very desirable. Frequently
the national security problem with a disclosure relates to specifics
of the disclosure that have nothing to do with the defendant's rights.
For example, a particular disclosure would reveal the name of an
agent of the United States who had done something that bears on the
defendant's guilt or innocence. A summary or a stipulation or an
admission by the Government will fully capture what is important
to the defendant : that an agent of the Government urged him to com-
mit the crime, or did this or did that. For the purposes of a fair
presentation to the jury, it will all be there. The only thing that is
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eliminated is what is irrelevant in terms of fairness and that is the
particular name of the agent, or the particular location of an installa-
tion.
What I am saying is that by a happy coincidence that I find rare
in life, what is crucial to national security are specifics that are often
irrelevant to fair trial and the provisions in your bill that permit-
and indeed we would have urged you as one of our minor requests
that it be required of the judge wherever it is consistent with fair
trial-substitution fully adequate for fair trial but deleting specific
names. That provision is a provision that does everything. It main-
tains a fair trial and protects national security. It is crucial both for
what goes in a trial and for what is available in discovery.
Senator BIDEN. One last question. To move back to the standard of
relevant and material that you would like to see rather than merely
relevant. I thought what I was doing was, and I think I still hold the
same position, that what I was doing was essentially reiterating pres-
ent law. Now you said in your testimony that the "relevant and ma-
terial" standard is current law. But isn't that current law only for
discovery and not admissibility and isn't there, shouldn't there be a
distinction made between the two?
Mr. HEYMANN. I think if there is a distinction between the two,
Senator Biden, we would want something a little bit broader for dis-
covery than for admissibility at trial so that the defendant would have
a broader array available to him.
To be frank, I don't think that either of us can say that the stand-
ard of relevant and material is the present law or relevant is the pres-
ent law. I could argue either side. I much prefer to argue the side of
that relevant and material is the present law. It is the law for infor-
mation about informants. It is much more generous to the defense than
the present law for rape evidence.
My argument would go by analogy and it would say, this is a situa-
tion like information about an informant and information about the
sexual practices of a rape victim, and does require something higher
than mere logical relevance and thus should be the same.
I think that is a quite strong argument. If you want to know whether
the trial courts we have been before have been acknowledging that they
are applying anything more than relevance, the answer is, I think,
that most of them have not acknowledged that they are applying
something more.
Senator BIEN. One of the fundamental differences, though, between
the interest being protected in the case of a rape victim and the inter-
est which you are seeking to protect is that in the case of-in the law
as we changed it, and I sponsored it with regard to previous sexual
behavior of the rape victim. My purpose there, along with my col-
leagues, I assume, was to protect the interest of the victim.
Now, I think that is arguably different than the interest of the Gov-
ernment, even though the Government can be a victim. We are talking
about an individual and the Government.
Mr. HEYMANN. If that is true, Senator Biden, it is not true of the
informant situation to which again it is very similar. The analogy
between informant and national security seems to me to be very close.
Indeed, in national security matters we are dealing with foreign
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informants--the intelligence community happens to call them some-
thing different from informants-they call them agents and sources-
but they are domestically simply called informants. They are the same
operation, the same type of people.
The idea that they get one level of protection where they may be
killed abroad and a greater level of protection where they may be
killed at home, doesn't make much sense to me.
I would like to take one brief step back, Senator Biden.
Senator BIDEN. Sure.
Mr. HEYMANN. To correct something I did. I would like to respond
to your question on the Jencks Act because I would like to just leave
the record a little bit open on whether the ABA provision or our pro-
vision is the better. You asked me how our provision would work and,
incidentally, I think we will agree with the ABA provision, but I
would like to leave the record just a little bit loose on that.
I have not, in fairness, consulted my colleagues here. It came up
very suddenly. It came as a surprise to me on Monday of this week, the
way our provision would work where we would have a witness. The
problem situation is that a Government employee is going to be a wit-
ness. Perhaps the Government employee is a CIA agent who is going
to be a witness and wrote a report on an event.
Now, because he is a witness, the Jencks Act requires his reports on
what he is testifying to to be furnished to the defense and available
at'trial. We agree that if there is any inconsistency, any possibility of
impeachment coming out of those reports, they should be made avail-
able to the defense and available at trial.
However, in a certain number of cases-it is not large and so it is
not an immense issue either from the civil libertarian point of view or
from the national security point of view, but it is one we feel we are
right on, and therefore are firm and strong on-in a certain number
of cases, that report by the CIA agent describing a conversation that
the defendant was involved in will include detail, for example, the
name of another agent, which is under present Jencks Act standards
related to his testimony and therefore under the Jencks Act has to be
turned over, but is in no way important to the defense. Just having the
particular name in many cases will not help the defense in any way
to impeach the testimony of the agent who has testified.
For that reason our provision said that a judge could look ex parts
as he can under rule 16, as he can in another provision of the Jencks
Act now, as he can with Brady questions and determine for himself
whether this was consistent. '
Where the classified national security name of an agent or a location
of an installation was consistent with the statements or was of no use
for impeachment, and if he found that it was consistent and of no use
for impeachment, then the judge would say that can be deleted and
the rest of the Jencks Act statements handed over.
The ABA proposal that Mr. Silbert will describe to you simply goes
directly to the conclusion. It says if the judge finds, not that it is con-
sistent-that was our language-but that it is not material to impeach-
ment, then he may delete it. That is from a group that is not sympa-
thetic to Government concerns and not in prosecution and not hostile to
Jencks Act in any way.
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I think they capture the same purpose and that is why I said what
I said earlier, but I would like to have you people have an opportu-
nity to comment. I would just like to have my colleagues have an
opportunity to come back to you with a comment.
Senator BIDEN. Fine, fine. Well I know you, as I said earlier, you
have many more pressing matters this week and I have other questions
but we are going to have, I assume, continue to have the opportunity
to speak with you on a regular basis. So, it is not like when 1 let you go
today that you are not available on the phone or in your office to
pursue some of these discrepancies.
I would like to say that I agree with your outline of where we are
at this point. I think the areas of agreement are vast. The areas of
disagreement are minimal and the three most troubling of those areas
of disagreement are the ones that we have been discussing. Hopefully
we can arrive at a satisfactory resolution of those areas of disagree-
ment, but I want to thank you very much for coming up.
Mr. HEYMANN. We appreciate your proceeding with the hearings
and the support you have given this, Senator Biden, because it would
be-I think I agree with you and I think you agree with me-it would
be a shame for us to fail to get action at a time, and on a bill where
there is such a measure of agreement.
Senator BIDEN. I agree.
Mr. HEYMANN. Thank you, Senator Biden, and if I want peace
and quiet I can comeback in here?
Senator BIDEN. You certainly can,. except there has been some sug-
gestion that I should begin hearings in this subcommittee on the
conduct of the FBI in the matter you are most involved in.
I am resisting that as much as you would probably like me to res'c'
it. Thank you very much.
Mr. HEYMANN. You are welcome.
[The prepared statement of Mr. Heymann follows:]
PREPARED STATEMENT OF PHILIP B. HEYMANN
Mr. Chairman, and members of the subcommittee, I am pleased to be here
today to discuss S. 1482, a bill introduced by Senator Biden and cosponsored by
Senator Kennedy of this subcommittee as well as Senators Bayh and Huddles-
ton. This bill represents a well-reasoned response to the problems posed by classi-
fied information in criminal cases. In August of 1979 I was privileged to ap-
pear before the Subcommittee on Legislation of the House Permanent Select
Committee on intelligence to discuss two legislative proposals before that sub-
committee addressing what we have come to refer to as the "Graymail" prob-
lem. These were H.R. 4736, which was introduced by Representative Murphy,
and H.R. 4745 an administration bill introduced by Congressman Rodino, chair-
man of the House Judiciary Committee. I now look forward to this opportunity
to comment on the provisions of S. 1482.
At the outset, I want to commend the chairman for his pioneering efforts in
addressing the problem of the disclosure of sensitive national security informa-
tion in the context of criminal prosecutions. As chairman of the Secrecy and
Disclosure Subcommittee of the Senate Select committee on Intelligence, he di-
rected an extensive study of the impact of secrecy on the administration of
justice' in cases involving the national security. Since that time, the Depart-
ment of Justice has worked with Chairman Biden, Congressman Murphy and
the ACLU to devise legislation that would provide procedures for these trouble-
some cases. From these sessions has emerged a significant degree of agreement
on the major contours of a legislative response to the difficult issues which arise
in criminal cases involving national security matters.
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In my testimony today I will first briefly discuss the problems we currently
face in criminal cases involving national security information and the reasons
why I believe there is a need for legislation to resolve those problems. I will
then specifically address the provisions of S. 1482. In doing so, I hope to explain
the importance if the improvements the provisions of the bill will produce, and
where appropriate, will suggest modifications that I believe will enhance the
effectiveness of the legislation.
As the chairman and I both noted in announcing the introduction of the vari-
ous graymail bills on July 11, some important differences in approach remain
to be resolved. However, in focusing on these differences, I do not want to create
the erroneous impression that the differences outnumber or overshadow the
similarities and advantages offered by S. 1482 and the administration's ap-
proach.
THE "GRAYMAIL" PROBLEM
Two of the most important responsibilities of the executive are the prosecu-
tion of violations of Federal criminal laws and the protection of our national
security secrets. Under present procedures, these responsibilities far too often
conflict forcing the Government to choose between accepting the damage result-
ing from disclosure of sensitive national defense information and jeopardizing
or abandoning the prosecution of criminal violations. The Government's under-
standable reluctance to compromise national security information invites de-
fendants and their counsel to press for the release of sensitive classified infor-
mation the threatened disclosure of which might force the Government to drop
the prosecution. "Graymail" is the label that has been applied to describe this
tactic. It would be a mistake, however, to view the "graymail" problem as
limited to instances of unscrupulous or questionable conduct by defendants since
wholly proper defense attempts to obtain or disclose classified information may
present the government with the same "disclose or dismiss" dilemma.
To fully understand the problem, it is necessary to examine the decision-
making process in criminal cases involving classified information. Under present
procedures, decisions regarding the relevance and admissibility of evidence are
normally made as they arise during the course of the trial. In advance of trial,
the Government often must guess whether the defendant will seek to disclose
certain classified information and speculate whether it will be found admissible
if objected to at trial. In addition, there is a question whether material will be
disclosed at trial and the damage inflicted, before a ruling on the use of the
information can be obtained. The situation is further complicated in cases where
the Government expects to disclose some classified items in presenting its case.
Without a procedure for pretrial rulings on the disclosure of classified infor-
mation, the deck is stacked against proceeding with these cases because all of
the sensitive items that might be disclosed at trial must be weighed in assessing
whether the prosecution is sufficiently important to incur the national security
risks.
In the past, the Government has foregone prosecution of conduct it believed
to violate criminal laws in order to avoid compromising national security in-
formation. The costs of such decisions go beyond the failure to redress particular
instances of illegal conduct. Such determinations foster the perception that
Government officials and private persons with access to military or technological
secrets have a broad de facto immunity from prosecution for a variety of crimes.
This perception not only undermines the public's confidence in the fair admin-
istration of criminal justice but it also promotes concern that there is no effec-
tive check against improper conduct by members of our intelligence agencies.
While only a very small percentage of criminal cases present classified infor-
mation questions, these cases often involve important matters of considerable
public interest. Moreover, we are increasingly confronting classified information
issues in a wide range of cases including espionage, perjury, burglary, and civil
rights violations, among others. The new Foreign Corrupt Practices Act provi-
sions and the possible enactment of a charter for intelligence activities can be
expected to expand the number of cases presenting classified information
problems
The Justice Department has recently endeavored to resolve problems posed
by issues involving classified information as they arose in individual cases.
Our experience with such an ad hoc approach has convinced us of the need for a
legislative response to the graymail problem. Only by establishing a uniform set
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of procedures for resolving classified information issues prier to trial can the
speculation and irrationality be removed from the present system. Rather than
making a rough and poorly informed guess as to the national security costs of
a prosecution, the government under the procedures contained in S. 1482 would
be able to determine whether in fact there was an actual conflict between its
prosecution and national security responsibilities and, if there was, to make an
informed assessment of the costs of continuing the prosecution. While it is not
possible to eliminate the tension between the executive's prosecutorial respon-
sibilities and its duty to guard against disclosure of classified information, I
believe that the procedures contained in this bill would significantly enhance
the Government's ability to discharge these responsibilites without jeopardizing
the defendant's right to a fair trial.
THE PROVISIONS OF S. 1482
Key provisions of S. 1482 would create a procedure for pretrial rulings and
appeals on whether classified information may be disclosed by the defendant at
pretrial or trial proceedings. These provisions would prevent the premature and
unnecessary abandonment of prosecutions in the face of "graymail" threats by
enabling the Government to obtain court orders barring the disclosure of inad-
missible classified information. When classified information is determined by
the court to be admissible, the bill provides that alternatives to disclosure of the
specific classified items and measures other than dismissal be employed where
such steps are compatible with the defendant's right to a fair trial. In addition,
by authorizing the Government to take interlocutory appeals the bill would
redress the present situation in which the Government, when faced with a ques-
tionable district court ruling, must either compromise the national security
information by permitting its disclosure at trial or withhold the information
and jeopardize the prosecution. A number of other important issues are also
addressed in S. 1482, and I will discuss these issues as they arise in relation
to the various sections of the bill.
SECTION 1. DEFINITIONS
This section provides workable definitions for the terms "classified informa-
tion" and "national security" that will determine the scope of the information
subject to the procedures contained in the bill. The definition of "classified
information" in subsection (a) will encompass all information determined
pursuant to executive order, statute, or regulation to require protection for
reasons of national security. This definition has the advantage of encompass-
ing both the present executive order governing classified information (Executive
Order 12065) and any executive orders, statutes, or regulations supplementing
or superseding the present executive order. Consistent with the definition of
"classified information", the definition of "national security" in subsection (b)
tracks the definition of that term in Executive Order 12085.
SECTION 2. PRETRIAL CONFERENCE
This section adapts the general pretrial conference provision of rule 17.1 of
the Federal Rules of Criminal Procedure to the particular context of criminal
cases involving classified information. The procedure established by this sec-
tion will enable either party to secure a pretrial conference early in the case
to set appropriate timetables for the resolution of issues involving classified
information. I believe that this provision of S. 1482 should afford the parties
and the court adequate opportunity to address the often complex sensitive
questions presented in criminal cases involving classified information.
SECTION S. PROTECTIVE ORDERS
This section requires the court, upon the request of the Government, to enter
an appropriate protective order to protect against the compromise of classified
information. There is precedent for this provision in current law. At present,
rule 16(d) (1) of the Federal Rules of Criminal Procedure authorizes the court
to enter appropriate protective orders in connection with the discovery process.
The authorization of the issuance of protective orders under this section, of
course, would apply whether the disclosure of classified information to the
defendant was in response to a discovery request or otherwise.
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I believe that the subcommittee could provide important guidance to the
courts regarding the protective measures that may be utilized by specifying
in this section examples of the types of protective measures that would normal-
ly be appropriate to safeguard against the compromise of classified informa-
tion. Examples of the terms of a protective order that could be included in this
section would be :
(a) Prohibiting the disclosure of the information except as authorized by the
court ;
(b) Requiring storage of material in a manner appropriate for the level of
classification assigned to the documents to be disclosed ;
(c) Requiring controlled access to the material during normal business hours
and at other times upon reasonable notice ;
(d) Requiring appropriate security clearances for persons having need to
examine the information in connection with the preparation of the defense ;
(e) Requiring the maintenance of logs recording access by all persons author-
ized by the courts to have access to the classified information in connection with
the preparation of the defense ;
(f) Regulating the making and handling of notes taken from material con-
taining classified information ; and
(g) Authorizing the assignment of Government security personnel and the
provision of Government storage facilities.
This section provides that, upon the motion of the Government, alternatives to
disclosure of specific items of classified information may be employed. Rule
16(d) (1) of the Federal Rules of Criminal Procedure presently provides that
"[u]pon a sufficient showing the court may at any time order that the discovery
* * * be denied, restricted, or deferred or make such other order as is appro-
priate." This section would supplement rule 16(d) (1) by providing guidance
to the court as to alternatives to be employed when disclosure Of the specific
classified information to the defendant is not necessary. These alternatives include
the deletion of specific items of information, the use of a summary of the informa-
tion, and the substitution of a statement admitting relevant facts. This proce-
dure would both permit prosecutions to be continued where an order requiring
that the specific classified information be disclosed to the defendant would
prompt the Government to dismiss the case and protect against the unnecessary
disclosure of classified information. As under present rule 16(d) (1), this section
provides that the Government may demonstrate that the use of such alternatives
is warranted in an in camera submission to the court alone.
I urge that the subcommittee amend this section to provide that the court be
required to authorize the use of one of the alternatives to disclosure unless it
determines that disclosure of the classified information itself is necessary to
enable the defendant to prepare for trial. This approach would have the advan-
tages of providing a basis for consistent judicial decisions on the use of alterna-
tives to disclosure of classified information, avoiding unnecessary disclosure, and
protecting the interests of the defendant by assuring that the section could not
be used to withhold any classified information necessary to enable the de-
fendant to prepare for trial.
SECTION 5. NOTICE OF THE DEFENDANT'S INTENTION TO DISCLOSE CLASSIFIED
INFORMATION
This section requires the defendant to notify the court and the Government
of classified information the defendant expects to disclose either at trial or at
any pretrial proceeding. The defendant's duty to notify the court extends to all
documents or testimony that he knows or has reason to believe contain classified
information. The defendant is required to provide a brief description of all such
classified information within the time specified by the court. However, this
description need not indicate the relationship of the information to the defense
or the method by which the defendant intends to develop the information at the
pretial or trial proceeding.
The notice requirement is similar to the requirement adopted by Congress
in 1978 to deal with sensitive information regarding the victim's prior sexual
behavior in rape cases. The rape evidence statute created new rule 412 of the
Federal Rules of Evidence. That rule requires the defendant to provide written
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notice 15. days prior to trial of any evidence of.specific instances of the alleged
victim's prior sexual behavior which the defendant intends to offer at trial.
The purpose of the notice requirement in rape cases, like the purpose of the
notice requirement in section 5 of S. 1482, is to identify cases in which there is
a need to hold a pretrial in camera hearing to determine whether sensitive
information may be disclosed by the defendant at trial. The Federal Rules of
Criminal Procedure also contain other notice requirements. Rule 12.1 presently
requires the defendant to provide the Government with a written notice of his
intention to offer an alibi defense and to disclose the names and addresses of the
witnesses upon whom he intends to rely to establish the alibi. Rule 12.2 now
requires the defendant to notify the Government in writing of his intention to
rely upon the defense of insanity at the time of the alleged crime.
The notice requirement of section 5 is the initial step in the procedure created
by the bill for predisclosure rulings. regarding the relevance and admissibility
of classified information. Notice from the defendant of the information he
intends to disclose is essential to alert the Government to the nature of the
information the defendant will seek to reveal and to enable the Government to
evaluate whether it needs to obtain a predisclosure ruling regarding the informa-
tion. Consistent with the purpose of the notice requirement, subsection (a)
provides that, upon request, the court shall order that the classified information
identified in the defendant's notice not be disclosed until the Government has
been afforded a reasonable opportunity to obtain a predisclosure ruling pur-
suant to the procedures established by section 6 of the bill.
SECTION 6. PROCEDURE FOB CASES INVOLVING CLASSIFIED INFORMATION
The procedures set out in section 6 should operate to prevent the unnecessary
abandonment of prosecutions by making it possible, in appropriate cases, for the
Government to secure court orders barring the disclosure of classified informa-
tion, to ascertain whether alternatives to disclosure of specific information are
available, and, where the court determines that disclosure is required but the
Government objects to such disclosure, to determine whether measures other than
dismissal of the prosecution are appropriate. These procedures will permit the
Government to make an informed assessment prior to trial of the national secu-
rity costs of continuing the prosecution as well as the risk to its prosecution
interests of protecting national security by refusing to permit the disclosure of
classified information.
SUBSECTION 6(a). MOTION FOR HEARING
This subsection provides that the Government, upon learning that the defend-
ant may disclose classified information, may move for a hearing concerning such
information. In connection with this motion, the Government is to provide the
court with a certification that the information in question is classified, and may
submit an explanation of the classificaiton of the information.
An extremely important aspect of this subsection is its provision for obtaining
an in camera hearing. Such a procedure will protect against the unnecessary
compromise of classified information and will permit a more open and frank dis-
cussion of the issues relating to disclosure. I believe we agree, however, that
these procedures should be structured in such a way as to assure that an in
camera proceeding is utilized only when the Government is seeking to prevent
the compromise of sensitive national security information.
The administration's proposed procedures for obtaining an in camera hearing
differ somewhat from those of S. 1482. We had proposed that all predisclosure
hearings be held in camera, but that it would be a prerequisite to obtaining any
such hearing that the Government demonstrate to the court in an ex parte pro-
ceeding that the disclosure of the information reasonably could be expected to
cause damage to the national security to the degree required to warrant classifi-
cation under the applicable executive order, statute, or regulation. Under S. 1482
the court will be required to conduct the predisclosure hearing in camera if the
Government certifies that a public proceeding may result in the comprise of classi-
fied information. While the two approaches vary somewhat, I believe they serve
the same purpose: providing assurance that in camera hearings are employed
only when sensitive national security material is actually involved. In my view,
the approach under this section of S. 1482 is an acceptable alternative, but I
believe that a requirement that the Government demonstrate to the court that
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the information was properly classifiable would better serve the goal of informed
judicial decisions on disclosure and related issues.
SUBSECTION 6 (b) . HEARING
Paragraph (1) of this subsection requires the Government to provide notice
to the defendant of the information that is to be at issue in the hearing. Where
the Government has previously provided the defendant with specific classified
information in connection with pretrial proceedings, the Government would
simply identify the specific information in its notice to the defendant. In other
circumstances, however, the Government would have the option of identifying
the specific information or describing the information by generic category. The
generic category approach (which might include a category such as "the identity
of CIA agents") might be used instead of disclosing specific names of agents
in situations where the defendant may not know the particular information
of concern to the Government or may be uncertain of its accuracy.
The "generic category" notice option will provide a procedure for coping
with potentially troublesome cases. In many cases, the Government will have
provided classified information to the defendant in addition to that information
which is identified by the defendant under the notice provisions of section 5.
Under section 6(a), the Government could seek a pretrial hearing on these
items, and would simply list the additional specific classified items in its notice
to the defendant of the material to be considered in the hearing. In some cases,
however, the Government will not have previously provided the specific classi-
fied information to the defendant and will be extremely reluctant to disclose
the additional classified material to the defendant. Absent the "generic cate-
gory" notice option, the Government may face a dilemma in which it must either
(1) compromise classified secrets by confirming the accuracy of information
or providing the defandant with information of which he had no previous
knowledge, or (2) fail to obtain a pretrial ruling and risk public exposure of
the information at trial.
I would suggest that to safeguard against any abuse of the "generic category"
option, that the Government's choice of a particular generic category be subject.
to judicial approval. Requiring judicial review of the appropriateness of the
generic category would permit the court to guard against overly broad cate-
gories and insure that the categories were appropriate to describe the specific
classified information of concern to the Government.
Paragraph 6(b) (2) requires the Government, whenever it has requested a
pretrial proceeding, to provide the defendant with a bill of particulars as to
the portions of the information or indictment which the defendant identifies
as related to the classified information at issue in the pretrial proceeding. Apart
from other problems presented by this provision, I am concerned that it and the
reciprocity provision under subsection 6(c) will serve to undermine the basic
purpose of the legislation by providing defendants with additional incentives
to press for disclosure of classified information.
I question the need for the bill of particulars section. Rule 7(f) of the Fed-
eral Rules of Criminal Procedure now permits the defendant to seek a bill of
particulars in any Federal criminal case. Whether a bill of particulars is appro-
priate depends on the nature of the indictment or information filed by the
Government and the circumstances of the particular case. The defendant will
have an opportunity to move' for a bill of particulars under rule 7(f) prior to
being required to notify the Government of classified information he intends
to disclose at trial. There is no reason to require a bill of particulars at a later
stage since a suitable bill of particulars will already have been provided or will
have been found to be inappropriate by the.district judge. At a minimum, I
would urge that if the provision is retained, it should be amended to make clear
that the court will supervise the process applying the standards of the current.
rule and will determine the adequacy of the particulars 'provided by the
Government.
Paragraph 6(b) (3) provides that the court, after the hearing, shall determine
whether and in what manner the classified information at issue may be used in
trial or at a pretrail proceeding. The court is to set forth the basis for its deter-
mination in writing.
I find it striking that S. 1482 is silent as to the standard to be applied by the
district court in determining whether classified information subject to the bill's
notice and hearing procedures may be disclosed by the defendant at trial. I
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believe inclusion of a standard to Govern the court's determination is essential
to the basic purpose of a legislative response to the graymail problem-to pro-
vide guidance to the courts, to promote uniformity and predictability, and to
facilitate decisions on the merits in cases involving classified information through
procedures compatible with the defendant's right to a fair trial.
I strongly urge the subcommittee to adopt a "relevant and material" stand-
ard to govern the court's determination to permit the defendant's disclosure of
classified information. This is the standard which the administration adopted in
its legislative proposal addressing the graymail problem. Under the hearing pro-
visions we drafted, the court would be required to prohibit the defendant from
disclosing or eliciting classified information unless it found that the information
was relevant and material to an element of the offense or a legally cognizable
defense.
It was our intent in formulating this standard that the term "material" was
to mean more than that the evidence in question bore some abstract logical
relationship to the issues in the case; it would require that the evidence be of
significance to the defendant's case. I would stress, however, that this standard
was not intended to, and, in my view would not, preclude disclosure by the de-
fendant of classified information found by the court to be "relevant and ma-
terial" -to impeachment.
The "relevant and material" standard we propose for. inclusion in S. 1482 is
based on the standard adopted by the Supreme Court in Roviaro v. United
States, 353 U.S. 53 (1957) for determining whether the defendant is entitled to
obtain and disclose the identify of a government informant in a criminal case.
Noting the important "public interest in effective law enforcement" served by
the protection of the identity of informants, the Court in Roviaro ruled that
disclosure of such sensitive information is not required unless the information
"is relevant and helpful to the defense of an accused or is essential to a fair
determination of a cause." 353 U.S. at 59, 60-61. Thus, the Court found in the
informant situation that the significant government interest in nondisclosure
requires that a more demanding standard than relevance be employed. Certainly
a similar standard would be appropriate in cases. involving national security
matters, for the interest in protecting the confidentiality of classified information
is equally, if not more, compelling than that in protecting the identities of law
enforcement informants.
I would also note that in enacting the recent rape evidence rule, Congress
recognized that a higher standard than relevance was warranted in determining
whether the victim's past sexual behavior could be disclosed at trial. There,
Congress required not only that the evidence of the victim's past sexual behavior
be "relevant", but also "that the probative value of such evidence outweighs the
danger of unfair prejudice." Rule 412(c) (3), Federal Rules of Evidence. The
"relevant and material" standard I have proposed would reject such a balancing
approach which could preclude the accused from disclosing evidence important
to his defense and would instead merely require that the classified information
be significant to the defense of the case in order to be disclosable at trial.
Paragraph (4) of subsection 6(b) sets out additional procedures to be followed
after the court's initial ruling on the disclosability of classified information by
the defendant. These procedures would provide needed flexibility where the
court finds that disclosure is appropriate. First, in lieu of disclosure of specific
classified information, the Government may proffer a statement admitting the
relevant facts the information at issue would tend to prove or may submit a
summary or portion of the specific classified information. Substitution of the
proffered alternative is required if the court finds that the defendant's right to a
fair trial will not be prejudiced. This provision will permit the Government to
continue prosecution and avoid disclosure of sensitive national security informa-
tion while assuring that the defendant will be able to use any classified material
necessary to afford him a fair trial. Second, should the court find that the use
of these alternatives to full disclosure is not appropriate and the government
continues to object to disclosure, a broad range of possible judicial responses is
provided.
The court would be afforded broad discretion in fashioning an appropriate
sanction for nondisclosure. By requiring that every order imposing sanctions for
nondisclosure permit the Government to avoid the sanction by agreeing to the
defendant's disclosure of the information, the bill will afford the Government
the opportunity to weigh the impact of the particular sanction against the costs
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of permitting disclosure. Permitting the Government to exercise its right to take
an interlocutory appeal prior to the enforcement of any order imposing sanc-
tions for nondisclosure will enable the Government to make the critical "disclose
or dismiss" decision with a full understanding of the costs involved.
SUBSECTION 6(C). RECIPROCITY
I question the need for the requirement that the Government provide the
defendant with rebuttal evidence when classified information is found admissible
under the predisclosure hearing procedures. The discovery rights of defendants in
criminal cases under current law are substantial, and there is, in my view, no
legal requirement that such an additional discovery provision accompany the
type of pretrial notice and hearing procedures contained in this bill. I am aware
that it has been argued that the Supreme Court's decision in Wardius v. Oregon,
412 U.S. 470 (1973), mandates the inclusion of a provision such as that set forth
in subsection 6(c) of S.' 1482. In that case, the Court ruled in the alibi notice
context that due process required that if the defendant is compelled to give ad-
vance notice of his intention to present an alibi defense the Government must
provide the defendant with notice of its refutation of the alibi defense.
In Wardiua, however, the Court was addressing a procedural rule designed
to prevent surprise and to maximize the amount of information available to
prepare for trial. In that context, the Court concluded that it was unfair to
require only one party to make disclosure. S. 1482 is not intended to enhance
discovery of information to facilitate preparation for trial but is instead de-
signed to provide procedures for orderly pretrial determination of issues in-
volving the use of classified information at trial. In this respect, then, S. 1482
is comparable to the rape evidence legislation recently adopted by Congress
and unlike the alibi notice rule. In the rape evidence rule there is no require-
ment that the Government disclose its rebuttal evidence.
However, I recognize that there may be limited circumstances in which,
pursuant to the pretrial hearing provisions, the defendant will be required to
disclose information that would not be subject to the existing reciprocal dis-
covery provisions of current law. I believe these instances will be limited be-
cause most of the classified information that will be at issue in the pretrial
hearing will have been provided to the defendant by the Government as part
of the discovery process. Thus, while the Department is not opposed to a rea-
sonable reciprocity provision as a policy matter to insure'the fairness of the
procedural scheme created by the proposed-graymail legislation, the reciprocity
requirement should be sufficiently flexible to-. adapt to the circumstances of
particular cases. I am therefore pleased that this provision of S. 1482 provides
that the court is to consider the "interest of fairness" in making its determina-
tion whether the government is to be required to supply rebuttal evidence.
I urge that this "interest of fairness" language be retained, at a minimum, so
that the court may respond appropriately where fairness does not require
further disclosure by the government, for example, where the classified infor-
mation involved was originally supplied to the defendant by the Government
on discovery. I would suggest that perhaps another solution would be for the
reciprocity provision to explicitly state that where such information was pro-
vided to the defendant pursuant to a discovery request, that the Government
need not supply in addition its rebuttal evidence unless the interests of fairness
compel such additional disclosure.
I am also concerned that, in contrast co the alibi situation, it is not en-
tirely clear what is covered by the requirement that government "provide the
defendant with the information it expects to use to rebut the classified in-
formation." Unless the trial judge is provided with discretion to guide the
Government as to the scope of its obligations or the sanction for nondisclosure is
modified to exclude good faith mistakes as to whether material should be
considered to be "rebuttal evidence", I believe that the provision may spawn
troublesome and disruptive litigation.
This section would authorize the Government to take interlocutory appeals
from adverse district court orders relating to the disclosure of classified in-
formation. Inclusion of this provision is a key element in addressing the
graymail problem, At present, the Government is powerless to appeal such orders
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and therefore is unable to obtain appellate review of important district court
rulings. Instead, the Government must either compromise the national security
information by permitting its disclosure during the course of the prosecution
or withhold the information and jeopardize the prosecution.
Congress has empowered the United States to appeal orders of 'a district court
suppressing or excluding evidence in a criminal case where the U.S. attorney
certifies that the appeal is not taken for purposes of delay and that the evidence
is a substantial proof of a fact material in the proceeding. See 18 U.S.C. 3731.
I believe that a similar provision authorizing interlocutory appeals of orders
requiring the disclosure of classified information is warranted since such orders
may have even a more dramatic impact on a prosecution than a suppression
ruling. Like 18 U.S.C. 3731, this provision would require certification that the
appeal is not taken for purposes of delay.
This section also responds to the need to protect the defendant's interest in
a speedy trial. While I expect that most issues involving classified information
will be resolved prior to trial and that thus most interlocutory appeals will be
taken prior to trial, this section permits interlocutory appeals to be taken during
trial and contains provisions to insure that such appeals will be resolved quickly
to avoid disruption of the trial. The procedures for interlocutory appeals during
trial are patterned closely on provisions of the District of Columbia Code adapted
by Congress in 1970. See D.C. Code ? 23-104.
This section addresses various issues related to the disclosure of classified
information at a trial or pretrial proceeding. These provisions would serve to
protect against unnecessary disclosure of classified information without under-
cutting the rights of criminal defendants. Subsection (a) provides that docu-
mentary materials need not be declassified in order to be placed into evidence.
This subsection addresses a problem which has arisen in prior cases where trial
judges have required that documents be declassified prior to use at trial. Since
classification is an executive rather than a judicial function, subsection 8(a)
would correctly permit the Government to introduce classified material at trial
without changing or eliminating its classification status. The decision whether
to continue or modify the classification status of the document after it has been
disclosed at trial is best left to the classifying agency.
I view as extremely important the provisions of subsection 8 (b), which au-
thorize the court to prevent unnecessary disclosure of classified information by
permitting the. use of only a portion of a classified document or the excision
of some or all of the classified information from a writing, recording, or photo-
graph introduced in a criminal case. In the recent espionage prosecution in the
Hampilea case, the Government introduced into evidence a copy of a highly
classified manual with certain extremely sensitive items deleted. This step,
which was taken with the consent of the defendant, protected the material
from unnecessary exposure. Section 8(b) of S. 1482 would permit the court, over
objection of the defendant, to order that this approach be followed in future
cases.
The effect of this provision would be to protect the most sensitive aspects of
classified documents-aspects that the Government would otherwise avoid re-
vealing in presenting its case at trial. The defendant's rights would be pro-
tected since the court would hear any arguments the defendant chose to offer
against permitting the deletions and the defendant would be free to demonstrate
that the deleted portions should he disclosed, where, for example, they represented
a relevant and material part of his defense.
Subsection 8(b) does not, however, reach those instances where it is impractical
to delete sensitive portions of a document. I urge the subcommittee to adopt a
provision similar to that contained in subsection 8(c) of H.R. 4745 which would
permit the government to prove the contents of a classified writing, recording
or photograph without the introduction of the original or a duplicate into
evidence. By relying on secondary evidence such as testimony to prove matters
contained in the writing, recording or photograph, the disclosure of classified
information could be minimized Absent the inclusion of such a provision, the
best evidence rule (rule 1002 of the Federal Rules of Evidence) would appear to
preclude this approach. As would be the case under section 8(b) of S. 1482, the
defendant would have an opportunity to present any arguments against this
approach, and would be free to introduce the classified writing, recording, or
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photograph if it is material to his defense. Where, however, the defendant has
no interest in or basis for introducing the document itself, the provision I have
proposed would prevent the needless disclosure of the classified information.
Subsection 8(c) provides a procedure to address the problem presented during
a pretrial or trial proceeding when the defendant poses a question or embarks on
a line of inquiry that would require the witness to disclose classified information.
The provision serves in effect as a supplement to the in camera proceeding pro-
visions in section 6 to cope with situations which cannot be handled effectively
under that section.
SECTION 9. SECURITY PROCEDURES TO SAFEGUARD AGAINST COMPROMISE OF CLASSIFIED
INFORMATION DISCLOCED TO THE COURT
This section addresses the need for the development of adequate procedures to
prevent the compromise of classified information submitted to the Federal courts.
Such information may be disclosed in original documents submitted to the court
in briefs and pleadings, during oral arguments, or through testimony. At pres-
ent, the handling of such materials is often the subject of ad hoc arrangements
developed in each case. Section 9, like section 103 (c) of the Foreign Intelligence
Surveillance Act, calls for the formulation of uniform security procedures for the
protection of classified information submitted to the Federal courts.
SECTION 10. JENCKS ACT EXCEPTION FOR CLASSIFIED INFORMATION
Section 10 would amend the Jencks Act (18 U.S.C. 3500) to provide a limited
and, I believe, reasonable exception to its disclosure provisions. The purpose of
the Jencks Act is to assist the defendant in impeaching the testimony of govern-
ment witnesses by requiring that prior statements of a Government witness
regarding the subject matter of his testimony be provided to the defendant.
At present, the Jencks Act contains a provision permitting the court, upon the
motion of the United States, to determine in an in camera proceeding whether
certain aspects of the witness' statement should be excised as unrelated to the
subject matter of the witness' testimony and withheld from the defendant. Sec-
tion 10 of S. 1482 would add an additional exception to the disclosure provi-
sions of the Jencks Act permitting the excision of, or substitution of a summary
for, those aspects of the witness' statement which are classified and are con-
sistent with the witness' testimony.
Without a provision such as section 10, the Jencks Act would require the dis-
closure to the defendant of classified information which, though related to the
subject matter of the witness' direct testimony, is not at all inconsistent with
the witness' testimony and is thus of no value for impeachment purposes. Thus,
absent the proposed modification of the Jencks Act, the government may have
to forego the use of an important witness, drop a prosecution entirely, or com-
promise sensitive national security information the disclosure of which will not
further the purpose of the Jencks Act of assisting the defendant by providing
material useful for impeachment.
The following hypothesis illustrates the problem that may arise under the
Jencks Act. Suppose a Government agent who witnesses the transfer of a highly
classified document to a member of a hostile foreign intelligence service prepared
a statement describing these events and in this statement noted that the person
receiving the document was the superior of a CIA agent whom the United States
had planted in the foreign intelligence service. Under the Jencks Act, the United
States would be required to choose between disclosing the existence of the CIA
agent to the defendant (another agent of the foreign intelligence service or a
person cooperating with that organization) or not calling the eyewitness to the
transfer of the document whose testimony would be critical to the successful
prosecution of the case.
I believe that the provisions of section 10 would prevent such situations with-
out undercutting the important purpose served by the Jencks Act, and thus I
urge the subcommittee to retain the proposed modification of the Jencks Act as
a sound, reasonable response to a limited but nonetheless serious problem.
I am aware that the proposed modification of the Jencks Act has been the
subject of controversy and would like to take the opportunity to address some of
the arguments that have been advanced in opposition to the proposed amendment
of the Act. At the outset, it is important to emphasize that the issue is one of
policy, not constitutional law. There is absolutely no constitutional problem
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posed by the adoption of section 10 of S. 1482. As the Supreme Court made clear
a decade ago in its unanimous opinion in United States v. Augenbiick, 393 U.S.
348, 356 (1969) : the "Jencks decision and the Jencks Act were not cast in con-
stitutional terms. Palermo v. United States, supra, at 345, 362. They state rules of
evidence governing trial before Federal tribunals ; and we have never extended
their principles to State criminal trials." Indeed, the Jencks Act itself demon-
strates that Congress may constitutionally assign to the courts the responsibility
for determining whether aspects of a witness' statement should be deleted before
being provided to the defendant and his counsel. See 18 U.S.C. 3500(c).
The real question raised by the Jencks Act modification proposal is whether
the benefits of the provisions to the sound administration of criminal justice and
the protection of sensitive national security secrets outweigh any possible adverse
impact on the defendant's ability to impeach prosecution witnesses. As I noted
above, absent the inclusion of a Jencks Act provision such as that contained in
section 10 of S. 1482, the United States may be needlessly forced to forego the use
of a crucial witness, drop a prosecution entirely, or compromise sensitive national
security information. While this problem can be expected to arise infrequently,
it would seriously jeopardize those prosecutions in which it did arise unless the
proposed modification is adopted.
Much of the opposition to the Jencks Act modification I have encountered has
rested on the argument that defense counsel rather than the court should deter-
mine the usefulness of a witness' prior statement for impeachment purposes.
There are numerous situations, however, in which the court rather than defense
counsel determines whether material is sufficiently important to the defendant
to merit disclosure.
First, as noted above, there is a statutory precedent for permitting the review
of Jencks Act statements and the deletion of material by the court prior to deliv-
ery of the statement to the defendant. Subsection (c) of 18 U.S.C. 3500 presently
requires the court to excise portions of the statement that are found not to relate
to the subject matter of the witness' testimony. Congress, as a matter of policy,
authorized this exception even though defense counsel may be better equipped
to determine what portions of the witness' statement relate to the direct
testimony.
Thin proposed modification of the Jencks Act in section 10 of S. 1482 would
merely extend the court's ability to excise portions of statements in a carefully
confined set of cases where the excisions involve sensitive national security
secrets and would not deprive the defendant of any material useful for
impeachment.
I reiterate that this modification is entirely consistent with the purposes ex-
pressed by Congress in enacting the Jencks Act. See e.g., H. Rept. No. 700, 85th
Cong. 1st sess. 2. 4 (1957) ("Such provisions as this legislation contemplates
effect a twofold beneficial purpose. It protects the legitimate public interest in
safeguarding confidential government documents and at the same time it respects'
the interests of justice by permitting defendants to receive all information neces-
sary-to their defense.") ; S. Rept. No. 981, 85th Cong. 1st sess. 4 (1957) ("The
Committee is also of the opinion that the decision as to relevance must be made
by the trial judge and not by the defendant or his attorney".). Second, under the
discovery rules, the court rather than the defense counsel determines whether
the information at issue is material to the preparation of the defense. Third,
under the Brady doctrine which involves the constitutional due process right of
the defendant to disclosure of exculpatory material, the court rather than defense
counsel determines whether the material is sufficiently beneficial to the defendant
to require that it be made available to the defendant. There are thus numerous
situations in which the court rather than defense counsel makes the assessment
of the value of the information to the defense.
In the hearings in which I participated before the Subcommittee on Legislation
of the House Permanent Select Committee on Intelligence, the Supreme Court's
decision in Alderman v. United States, 394 U.S. 165 (1969) was cited as a basis
for opposing the proposed Jencks Act modification contained in the administra-
tion's graymnil bill, H.R. 4745, a provision substantially similar to thct of section
10 of S. 1482. In Alderman, the Court concluded that the tack of tracing the
impact of illegally obtained information on the investigation of the defendant was
"too complex and the margin of error too great to rely wholly on the in camera
judgment of the trial court." 394 U.S. at 182. However, the Supreme Court has
expressly distinguished the problem addressed in Alderman from the Jencks Act
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context noting that "[i]n both the volume of the material to be examined and
the complexity and difficulty of the judgments involved, cases involving elec-
tronic surveillance will probably differ markedly from those situations in the
criminal law where in camera procedures have been found acceptable to some
extent." 394 U.S. at 182-83 n. 14. Furthermore, Federal courts following Alderman
have repeatedly distinguished between the complex task of assessing the impact
of electronic surveillance and the function of examining reports or statements to
determine whether they contain exculpatory material or information discoverable
by the defendant'
The potential for prejudice to the defendant from the proposed Jencks Act
provision is extremely remote. Under the provision, if the government certifies
that the specific material in the witness' statement is classified and demonstrates
that the material was consistent with the witness' testimony, the court would
delete the material or substitute a summary and then provide the statement to the
defendant. The provision would permit the excision of additional, consistent
detail not disclosed in the witness' direct testimony. It would not deprive the
defendant of any of the means of impeachment referred to by the Supreme
Court in the Jencks case-"[f]lat contradiction," [t]he omission from the re-
port of facts related at the trial," "a contrast in emphasis upon the same facts"
and "a different order of treatment." Jencks v. United States, 353 U.S. 657, 667
(1957).
If the subcommittee determines that employing a standard permitting excision
of material upon a finding that the material was "consistent" with the witness'
testimony would permit excision in too broad a range of circumstances, other
language could be used that would more clearly define those situations in which
the portion of the witness' statement had no value for impeachment purposes. For
example, section 10 could be amended to provide that excision would be per-
mitted only when the classified information was "fully consistent" with the
witness' testimony.
I would also suggest that while the provision requiring the Government to
supply an affidavit identifying the portions of the witness' statement that are
classified is acceptable to the Department, I believe the interests of the de-
fendants would be better served and the court would be able to make a more
informed decision if, as we provided in our graymail proposal, the government
were required to demonstrate to the court that the Jencks Act materials it
sought to have excised were properly classified. This would insure that consistent
portions of a Government witness' statement could be deleted only when there
was a genuine danger of compromising sensitive national security information.
Finally, while the Department would prefer excision of classified informa-
tion that has no impeachment value to be mandatory, we believe that even the
permissively phrased provisions of section 10 amending the Jencks Act provide
an important mechanism to limit unnecessary disclosure of classified information
without jeopardizing the rights of the defendant.
SECTION 11. IDENTIFICATION OF INFORMATION RELATING TO THE NATIONAL DEFENSE
This section would require the Government in espionage and other criminal
cases involving the transmittal of classified information to identify those ma-
terials it expects to rely upon to demonstrate the national defense or classified
information element of the offense. This provision is intended to aid the defen-
dant in the preparation of his defense when the Government has submitted large
quantities of materials to prove the national defense or classified information
element of the offense. The procedure provided under this section would enable
the defendant to focus on the particular materials on which the Government in-
tends to rely in establishing its case. I believe this section responds to a legiti-
mate concern of defendants, but I would prefer that it would provide that requir-
ing the Government to supply this notice be within the discretion of the court.
1 See, e.g., United States v. Allen, '554 F. 2d 398, 411 (10th Cir. 1977) (distinguishing
Alderman in upholding in camera examination of a report by the court to determine whether
it contained enculpatory information) ; United 'States v. Rawlinson. 487 F. 2d 5, 7-8 (9th
Or. 1973) (distinguishing Alderman in upholding in camera judicial determination as to
whether the disclosure of an informant's identity would be heloful to the defendant)
United States ex rel. Williams v. Dutton, 431 F. 2d TO, 71-73 (5th Cir. (1970)
(distinguishing Alderman in upholding in camera judicial determination whether infor-
mation was material to the guilt or punishment of the defendant).
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Subsection (a) requires the Attorney General to issue guidelines specifying the
factors to be considered in rendering decisions not to prosecute cases in which
there is a possibility that classified information will be revealed.
Subsection (b) would require the Department of Justice to file a written re-
port whenever there is a decision not to prosecute because of the possibility of
disclosure of sensitive national security information. The written report is to
include (1) "written findings detailing the reasons for the decision not to pros-
ecute," (2) "the intelligence information which the Department of Justice of-
ficials believe might be disclosed," (3) "the purpose for which information might
be disclosed," (4) "the probability that the information would be disclosed," and
(5) "the consequences such disclosure would have on the national security."
This report is to be provided to the Permanent Select Committee on Intelligence
of the House and the Select Committee on Intelligence of the Senate.
The Department of Justice opposes the inclusion of such a reporting provi-
sion. In our view, the provision goes beyond legitimate oversight and would
constitute an infringement of the executive's function to enforce the Federal
criminal laws. The provision calls for a detailed written justification of the
Justice Department's exercise of its prosecutorial discretion on a case-by-case
basis whenever the Department's decision not to prosecute involves as a factor
the possible disclosure of classified information. There is, to my knowledge, no
precedent for such an incursion into the executive's traditional responsibilities.
Such a statutory requirement would establish a precedent that could lead to the
intolerable situation in which the Department was compelled routinely to detail
its reasons for not seeking indictments or for dismissing charges or participating
in plea bargains in particular cases.
I am unaware of any pattern of intransigence on the part of the Department
or failure to accommodate the legitimate informational needs of Senate and
House Committees on Intelligence that would warrant the type of reporting
requirements in S. 1482. It is my understanding that the Department has under-
taken in the past to brief these committees on an informal basis on aspects of
particular cases. I would respectfully suggest that a continuation of such a flex-
ible, informal process is more in keeping with the proper roles of two coequal
branches of Government than is the regime envisioned by subsection 12(b).
In opposing the bill's reporting requirement, I do not mean to question the
legitimacy of the underlying concern that a risk of disclosure of classified in-
formation should not be used by the executive as an excuse to avoid embarrassing
disclosures of Government wrongdoing or incompetence and should not lightly
override prosecution of a substantial criminal violation. I simply believe that the
subcommittee's concerns. in this area can, be met without the bill's sweeping re-
porting provision.
I also have serious doubts regarding the wisdom of requiring the preparation
and circulation of at least two sets of written findings disclosing the classified
information and detailing all of the ways in which its public disclosure would
harm our national security. By definition, such written reports will involve
instances where the classified information is viewed by the executive as so sensi-
tive that protection of its confidentiality overrides the strong interest in prosecut-
ing violations of Federal criminal laws. Without denigrating the care with which
Such reports would be handled by the committees and their staffs, I believe that
this subcommittee should pause to carefully reflect whether such reports should
be routinely required.
In concluding my testimony before the subcommittee today, I would like to
stress that S. 1482 and the modifications I have proposed would require only
modest procedural changes in the manner in which criminal cases involving
classified information are conducted. The primary effect of the bill would be to
alter the timing of rulings on the relevance and admissibility of certain evidence.
As I have noted above, the primary features of S. 1482 and the modifications of
the bill I have proposed are rooted in statutory provisions and procedural rules
that now apply to the conduct of criminal cases. Moreover, the bill reflects the
desire to preserve the important values served by public trials in criminal cases.
None of the provisions of S. 1482 nor the amendments I have proposed would
authorize the exclusion of the public or the press during the taking of any testi-
mony at a criminal trial.
I believe that the candor and cooperation of all the parties who have par-
ticipated in the formulation of S. 1482 and the two bills introduced in the
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House of Representatives have brought us very near a final resolution of the
graymail problem that will provide a reasonable and equitable legislative
response to the troublesome issues arising in criminal prosecutions involving
sensitive national security matters. While I urge the subcommittee to give care-
ful consideration to the modifications of S. 1482 I have proposed in my state-
nient today, I would like to conclude my testimony be emphasizing that the
Department of Justice believes that the core elements of S. 1482 represent a
response to the graymail problem which will protect the integrity of sensitive
information relating to our national security and defense and will enhance the
effective prosecution of criminal cases in which classified information may be
at issue, while at the same time insuring that the rights of the accused are
not compromised.
Senator BrDEN. Our next panel which is already at the table and I
apologize if I mispronounced anyone's name. Mr. Rushforth, Deputy
General Counsel, Department of Defense, sitting on my right; Mr.
Silver, General Counsel, CIA. Mr. Silver in the middle, and Daniel'
Schwartz, General Counsel, the National Security Agency.
Gentlemen, why don't we begin in that order, proceed in that order
and I will put your entire statements in the record. If you would like
to proceed with your entire statement feel free to, but also it would
probably be more useful if we could summarize them since I am
familiar with them and get to questions more rapidly. Thank you.
PANEL OF EXPERTS:
STATEMENT OF BRENT N. RUSHFORTH, DEPUTY GENERAL COUN-
SEL, DEPARTMENT OF DEFENSE; DANIEL B. SILVER, GENERAL
COUNSEL, CENTRAL INTELLIGENCE AGENCY, AND DANIEL C.
SCHWARTZ, GENERAL COUNSEL, NATIONAL SECURITY AGENCY
Mr. RUSHFORTH. Thank you, Senator Biden. I am Brent Rushforth
representing the Department of Defense. I support fully the Depart-
ment of Justice's position on the proposed legislation and support the
notion that it constitutes a significant step toward a solution of a com-
plex and difficult problem and I appreciate being invited here this
morning to speak to the proposed legislation.
Mr. Heymann has spoken in his testimony of the tension that exists
between two very important responsibilities of the executive branch.
On the one hand the prosecution of violations of Federal law and on
the other the protection of our national security secrets.
The Department of Defense has significant responsibility in the
second category. I can say from personal experience within the De-
partment of Defense that our participation in the resolution of that
tension between these responsibilities in specific cases has been ex-
cruciating. When the resolution includes the dropping of an otherwise
valid prosecution or the revealing of sensitive national security secrets
during the course of that prosecution, our country is not well served.
I don't believe it is necessary to repeat the. analysis or comments
on the bill that were included in Mr. Heymann's testimony. I do wish
to emphasize our support for most of the comments and amendments
suggested by Mr. Heymann. In particular we support the suggestion
and the comment of Mr. Heymann on protective orders. We think it
would be very useful to spell out in the legislation specific examples
of protective orders that could be invoked by the court.
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We believe the bill properly allows excising of certain portions of
documents. This has worked well in past criminal litigation by stipu-
lation between the Government and the defendant but the bill as
presently structured gives the power to the court to impose that upon
the attorney, even though the defense attorney may not agree and
we believe that is a very important provision here. Many times the
national security may be compromised by the submission of a docu-
ment in its full and complete form whereas if there were certain
excising of critical pieces of information that have nothing to do
with the right of the defendant to a fair trial, that document could be
submitted and go into the record.
Regarding Mr. Heymann's comment on written findings and report-
ing of reasons why a particular national security prosecution may
have been dropped rather than prosecuted, I can simply say that with-
in the Department of Defense there is substantial nervousness if you
will with regard to the submission of written findings and written
reports on each and every case as that decision is made.
I believe there would be substantial agreement with Mr. Heymann's
comments on those provisions. That is to sav we would have no trouble
cooperating fully in briefings to the relevant committees regarding
those decisions, but we would prefer that those briefings be done in the
way that Mr. Heymann suggested. That is to say, periodically rather
than when those decisions are made and in oral form rather than
written form. I want to emphasize that I would agree fully with Mr.
Heymann's comments that when we proceed to discuss these cases with-
in the executive branch, we do so in the way Mr. Heymann suggested.
Senator BmFN. Because of your concern for leaks and your inability
to plug the. leaks at the executive level?
Mr. RUSHFORTH. Well I would rephrase that by saying that we
are-
Senator BmEN. I want to set that clear by the way, you know. I have
been so tired of being on the Intelligence Committee and talk about the
leaks from us. My God, you guys in the executive branch make us look
like amateurs in terms of leaks. The record should reflect that. I hope
you write that in big print, because I think the public has a very
different'view of where these leaks come from. They are not coming
from us.
Mr. RUSHFORTH. Well I want to say for my part-I don't want to
let this moment pass without saying that I think both the legislative
branch and the executive branch have very substantial problems in
this regard and I wouldn't want to try to be the judge as to who is
doing the worse job. I do want to say that I think the problems are
substantial.
Senator BmEN. I agree with that.
Mr. RUSHFORTH. And the reluctance or the nervousness regarding
the provision of written report has to do with that phenomenon. The
paper flow is, the Xerox machine is a substantial enemy to the main-
taining of national security secrets.
Again, I agree with Mr. Heymann that this bill does not constitute
major surgery. Indeed it may be fairly said to canonize or to bring
into the legislative arena what the judge may already have the power
to do but that does not denigrate its importance because as this kind
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of litigation presently goes on, it is basically a role of the dice as to
whether the competing interest of maintaining national security
secrets on the one hand and maintaining a valid prosecution on the
other hand can be reconciled.
We believe this bill will allow the Government to proceed with
valid prosecutions while protecting the defendant's right to a fair
trial and preventing harmful disclosure of national security secrets.
I think I will conclude with that, Senator Biden, and certainly am
happy to answer questions.
Senator BIDEN. Fine, thank you. Mr. Silver.
Mr. SILVER. Thank you, Mr. Chairman. I will not read my statement
but I would like to make a few comments. First of all I would like
to associate myself with your own opening remarks, Senator Biden,
about the importance of the full range of legislative proposals relat-
ing to the intelligence community before the Congress, not the least of
which are the charters. Having spent the last 2 years of my life work-
ing intensively on the charters, I attach a great deal of importance to
to the passage of that bill and I know that Admiral Turner personally
is deeply committed to the charter legislation.
I also want to make it clear that this graymail problem and legisla-
tion to correct it are very near the top, if not at the top, of our list of
legislative priorities. Dealing with these problems, both for the Direc-
tor of Central Intelligence and for myself, has been one of the most
agonizing and difficult areas with which we have had to deal.
Our interests, the interests of the Central Intelligence Agency in.
this bill, are manyfold. I just want briefly to touch on. three areas that
concern us and that we think demonstrate a strong need for the codi-
fication and regularization of the procedures in this area, in order, as
Mr. Heymann said, to make them predictable.
The first is espionage prosecutions, many of which, as you know,
have had to be forgone or aborted at some point in the procedure
because of the very difficult problems of exposing national security
information. The second is allegations that are made about the role
of the Central Intelligence Agency and about the role of the intelli-
gence community in general in the criminal process-allegations that
are untrue but against which we have very little ability to defend our-
selves, that in some fashion we are interfering with the Justice De-
partment's activities, protecting wrongdoers, so forth and so on. I can
assure you that it is only with the greatest reluctance and after the
most careful consideration both by ourselves and by the Justice Depart-
ment that national security concerns are allowed to intrude into the
prosecution of any case.
The public doesn't see this process and I think it is widely mis-
understood. One advantage that we see in the graymail bill is to
remove this misunderstanding as a public concern.
Third, the question of dealing with our own employees is a concern
to us. The overwhelming majority of our employees are honest, up-
right, and devoted to upholding the law. But, as in any large orga-
nization, there is an occasional bad apple, if you will, and we find it
frustrating and unacceptable because in many cases, we cannot pro-
ceed with criminal prosecution in the fashion that another Govern-
ment agency would, if, for example, we discover that someone has mis-
appropriated funds from the Agency.
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I would say parenthetically that the vision that some of the sup-
porters of this bill have that passage of this bill will lead to the mas-
sive incarceration of Intelligence Agency employees for violations of
laws in the United States is a badly misplaced delusion, but the abil-
ity to proceed in the rare cases that arise is very important to us.
Senator BIDEN. I would agree with that completely. I am glad you
emphasized that point because it has been raised as you know by
others and I share your view as to the competence and honesty of the
overwhelming majority of the people in the community.
Mr. SILVER. Thank you, Senator. The second point, as previous
witnesses have emphasized, is that the differences between this bill,
S. 1482, and the administration version, while not totally insignificant,
are far less important than the common principles and provisions that
run through both. My own personal view is that what we really need
is something that will make it clear to the courts that they do have
the power to act in this area, introducing predictability into the con-
duct of these cases, and that this bill would certainly achieve that end.
There is one provision that is not present in the Senate bill that I
consider very important and I would like to draw your attention to it.
That is the provision which is found in H.R. 4745 that would permit
the Government to prove the contents of a classified document without
actually introducing that document into evidence.
That provision, which is section 8(c) of H.R. 4745 would overcome
the best evidence rule in a very limited number of cases. The purpose
of this is to deal with the rare situation in which excision of parts of
a document, or even a summary of its contents, is not sufficient to
protect the national security information and in which the actual
contents of the document, word by word, or picture by picture-and I
should say classified photographs are one of the biggest problems in
this area-is not really germane to the defense. I think that this pro-
vision would perfect the otherwise very satisfactory procedural tools
that are included in S. 1482.
Senator BIDEN. I beg your pardon. Now the provision you are re-
ferring to is 8(c) of the administration bill or 4745 of the House bill?
Mr. SILVER. It is H.R. 4745.
Senator BIDEN. Oh, I am sorry. OK. I am with you now.
Mr. SILVER. OK. I wanted to make one comment in respect to the
matter that you raised, Senator, about interagency cooperation, that
you were careful to attribute to a pre-Phil Heymann point in time and
just to assure you that, in my tenure as General Counsel of CIA and
in dealing with Mr. Heymann, the cooperation on these cases has been
complete. Communication has been complete. There has been a very
small number of cases but in those that have arisen, we have spent
many hours together going over the national security information that
was involved. Mr. Heymann is a skilled cross-examiner and he has
put us to our proof in a very intensive fashion before he would accept
any claim that the national security required terminating or foregoing
a prosecution.
Senator BIDEN. May I interrupt you there? Have you had, has that
presented any difficulty for your agency? We used to have the 11-
question routine in past years and obviously the method which you
are now engaged in, and that you as the General Counsel and Phil
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29
Heymann as the head of the Criminal Division are engaged and which
you just recited for us, is a very different process.
Now, has the present process caused the CIA, the General Counsel's
Office of the CIA any difficulty? Has it in any way compromised you
or have you had any problems with it?
Mr. SILVER. Well, let me start in answering that by drawing a dis-
tinction between the kind of case in which the 11 questions apply and
the kind of case I was talking about.
Senator BIDEN. All right.
Mr. SILVER. The 11 questions, somewhat to my dissatisfaction, still
exist and typically in a case where we report to Mr. Heymann that
there has been a leak or unauthorized disclosure of classified informa-
tion, the procedure that follows is a questionnaire with the 11 questions.
Very few if any of those cases are dropped because of national security
concerns. They generally are dropped because the FBI or the Depart-
ment determines that the number of people too whom the information
was disseminated is so great that they can't possibly hope to pursue an
investigation or that there are some other nonnational security reasons
for dropping the case.
Occasionally, paradoxically, we find ourselves in a situation where,
as Mr. Heymann was saying, there may be a national security reason
not to pursue the investigation and the Agency is saying that we are
willing to take the national security risk in order to achieve the prose-
cutorial aim because the roles are not always what you might expect in
that situation.
The kind of case to which I was alluding is the kind of case in which
I think the graymail bill would be most often used. That is, for exam-
ple, a classic espionage case where someone has been detected selling
documents to a foreign power or an unrelated criminal case in which
there is an intelligence agency involvement or equity. In those cases
the kind of procedure that I described to you causes us, as you correctly
discern, a lot of work but no substantive difficulty, and we very much
appreciate having the kind of dialogue that Mr. Heymann can give.
Senator BIDEN. Well now, in the bill that we drafted, the subcom-
mittee, there is a provision requiring the Justice Department to pro-
mulgate guidelines specifying the factors to be used in deciding
whether to prosecute a case where national security information may be
disclosed, and what I was attempting to get at through this provision
was an avoidance of the routine 11-question procedure which in other
times may produce the same results it produced in the past and too in
a sense, institutionally require without specifying how, leaving it to
the discretion of the executive branch the process that you and Mr.
Heymann engage in now.
So I assume you don't have any problem with the executive branch
setting down guidelines, but nonetheless there would be guidelines, not
the open situation which exists now.
Mr. SILVER. I have no problem with it, Senator Biden. I have a cer-
tain pessimism as to whether it will. materially change the present
practice.
Senator BIDEN. I am not so dissatisfied with present practice, I just
don't want to go back to past practice. Again, I don't mean to imply
that all that was done in the past was bad or designed to do something
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illegal or to pull the wool over somebody's eyes, or, to avoid, disclosing a
blemish. My characterization of it would be that there seemed to be a
sense of fruitlessness and an interagency unwillingness to cooperate
and it just became institutionalized so that, you know, the Justice De-
partment would get it and say, well, you won't give us all. If they
don't answer question eight, well hell, we are not going to move for-
ward and there were many examples of it just ending there. I mean
nothing more than a checkoff on very important cases. I mean not
minor matters. There were some very important cases. So that I am
concerned that we don't, as the personnel changes, 2, 5, 10, 12 years
from now and the climate changes that we don't slip back that way.
That is the reason for it. I have no great faith in guidelines, whether
they be for the Federal Energy Regulatory Commission or the CIA,
or the Congress producing significant results. But, it is more as a
breaking action to keep it from moving back. Although you are pessi-
mistic about what it will produce, you have no objection to the inclu-
sion in the legislation of such a provision requiring Justice to move for-
ward with guidelines?
Mr. SILVER. That is correct, sir.
Mr. RusHFORTH. Senator Biden, if I may take a crack at that same
question.
Senator BIDEN. Surely.
Mr. RUSHFORTH. I think with or without the guidelines provision,
this legislation, or this bill if it becomes legislation is bound to insti-
tutionalize the process that we have been talking about here and it is
bound to make that process function a whole lot better than it has
functioned in the past.
I have been involved with Mr. Silver and Mr. Heymann in many of
the so-called classic espionage cases where on the one hand you have
the national security interest involved and on the other you have the
interest of the proceeding and these have been excruciating episodes
and they have been extremely difficult not because Mr. Heymann was
trying to make our life difficult, but because simply the two interests
were so head on, in such head-on competition that the resolution of
those interests was almost impossible at times.
This legislation which will go a long ways toward making that
resolution a whole lot easier. The kinds of things we would sit and
argue about for hours were the kinds of things that this legislation
will go a long way toward taking care of.
For example, we have a document in front of us with language and
a picture and we would argue for hours about whether that could be
made available to the defendant and if so whether it would ultimately
end up in the public record of the trial and how compromising that'
would be to national security. .
The provisions of this legislation will go a long way toward solving
this.
Senator BIDEN. Thank you. I interrupted your statement.
Mr. SILVER. I was at the end.
Senator BIDEN. All right. Mr. Schwartz, you have been very patient,
sitting there with all these questions and statements. Would you make
your statement and then maybe we could continue with the questions.
Mr. SCHWARTZ. I've had the opportunity, Mr. Chairman, to sit here
and nod my head in agreement to most of my colleagues' comments. I
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appreciate the opportunity to be here and testify in support of this
legislation. I want to pass along Admiral Inman's regrets that he
could not attend in person and express his interest and concern for this
legislation and compliment you, Mr. Chairman, on the efforts you have
taken to push this forward..
In light of the extensive testimony that has taken place both today
and in the past on this legislation, I would like to just focus briefly,.
if I could, on the particular concerns of the National Security Agency
and the type of involvement that we tend to have in the kinds of cases
that make this legislation necessary.
As you are aware the signals intelligence mission of the National
Security Agency requires a unique sort of security protection because
of the fragile nature of the sources of the intelligence that we deal
with. Even obscure references to information derived from signals
intelligence can alert a knowledgeable observer to the, sources of the
information and thus can result in countermeasures that can deny the
source to us, often negating years of effort and adversely affecting the
use of complex and often costly technical systems.
Because of the nature of NSA's mission, its materials and documents
may often become the subject of discovery or production disputes in
both espionage or leak-related cases and in a widely disparate group
of other criminal prosecutions. In fact, this problem is not limited to
criminal prosecutions and we have experienced the same pressures in
some civil actions, for example, involving the antitrust laws.
But in criminal prosecutions, the defense counsel now routinely use
various authorities available to them in an effort to locate any sensitive
information, regardless of its relevancy, partially in an effort to dis-
suade the Government from prosecuting a particular case.
Once classified documents have been obtained under proper security
procedures, the defense may often request the court to release some or
all of those documents despite their classification. While some reasons
for release are advanced, perhaps the most difficult to counter is the
argument that there has been elsewhere an unauthorized or unsub-
stantiated public disclosure of portions of the information. The fact
that an unsubstantiated leak or speculation has occurred may cause
substantial harm to the national security in and of itself.
The additional fact that there may be neither criminal investiga-
tion nor prosecution as a result of that particular leak may of itself
be particularly perplexing to us in the intelligence community. But
to claim such disclosures as the basis for making public sensitive clas-
sified information and documents greatly increases our collective
chagrin.
The leak or speculation may be in part fact and in part fiction or
sufficiently garbled that foreign observers are not able to attribute the
information to a particular source or technique with a sufficient degree
of reliability to warrant or justify the institution of countermeasures.
The release of an official confirmation at trial, however, is likely to pro-
vide the necessary information to identify the source and justify the
countermeasures.
We believe that the steps taken in S. 1482 as well as the steps pro-
posed in the administration version will go a long way to improving
this situation and take significant steps to recognize more clearly the
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national security needs to protect classified information while address-
ing the very real concerns of both the prosecution and defense.
Therefore, while we prefer the administration version and concur
with many of the comments that have been made this morning about
various minor changes, in our view minor changes, in the legislation,
we support this legislation and feel it goes a long way toward solving
many of the common concerns.
Senator BIDEN. Thank you very much. Mr. Rushforth, you testified
in favor of a provision contained in the administration's bill. I think
probably all three of you are in agreement on this, section 8A which
would authorize the Government to introduce classified documents
into evidence without declassifying it.
I have several questions relating to that position. Do judges now
require declassification before documents can be introduced?
Mr. RUSHFORTH. The Justice Department follows that rule, Senator
Biden, and I am not sure whether it has been passed upon by a Fed-
eral district court judge as it may have been. But the general rule has
been followed that declassification is required before a document is
submitted into evidence.
There have been exceptions to that rule. There was an exception
for example in the trial of William Kampiles and that exception was
so important as to make the difference as to whether or not that prose-
cution could go forward because there were some extremely sensitive
documents involved in that trial and had there been a requirement
that those documents be declassified for purposes of that trial, I think
there would have been some substantial possibility that that trial
could not have gone forward.
Senator BIDEN. Can you deny the public or the press access to
evidence admitted in a public trial?
Mr. RUSHFORTH. Well, that is exactly what would happen if allowed
in without declassification. That material would then not be available
either to the public or to the press.
I don't-I personally don't believe that that compromises the
defendant's right to a fair trial in any way. His counsel would have
full access to the material. The court would have full access to the
material. The jury would have full access to the material, but the pub-
lic and the press would not have access.
Senator BIDEN. Mr. Silver, the same section 8 (c) of the adminis-
tration's bill would authorize the court to dispense with the best evi-
dence rule when classified information is involved. This rule was codi-
fied in rule 1002 of the Federal Rules of Evidence. It states, and I
nal w the content of a writing, recording, or photograph,
quote, "To pro ve
the oriting, r ecording, or photograph is required except as
otherwise provided in these rules or by an Act of Congress."
Now, do I understand correctly that by eliminating the best evi-
dence rule, and any of you can respond to this if you like, by eliminat-
ing the best evidence rule, the administration intends to allow the
prosecution to prove that a defendant disclosed or transmitted a classi-
fied document relating to the national security or defense without
allowing the court or Jury to see that document?
. Mr. SILVER. That's correct, Senator, in a limited variety of cases. I
wouldn't anticipate that this would be used widely. Take a simple case,
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for example, the Kampiles case, where the defendant was accused of
transmitting to a foreign power a manual for an intelligence collection
system, a voluminous document full of information, some of it very
sensitive, very hard to "sanitize," in the jargon of the trade, in any
fashion. The statute in question requires that this be national security
information in order for liability to attach. But that was not really a
major issue in the case.
I find it difficult to see in that kind of case, or in cases involving
classified photography or other documents of that sort, why the Gov-
ernment should not be allowed to introduce into evidence, let us say
only the cover page of the document supported by whatever evidence
there is for the fact that the defendant took or transmitted the docu-
ment and then by witness testimony in general terms prove its national
security character, subject to the rebuttal right of the defendant but
without laying the entire document in the public record.
Senator BIDEN. Let me ask you. I should know this and I don't. Was
the constitutionality questioned of that method of proceeding which
was the method used in the Kaimpiles case, wasn't it? Isn't that how
you did proceed?
Mr. SILVER. It was done with agreement of the defendant in that
case. In other words, the issue of constitutionality did not arise.
Senator BIDEN. I see; but I assume you are of the view that it is
constitutional. It would be constitutional if, in fact, it had had not
been done by agreement, the court had ordered it and it was challenged
by thq defense.
Mr. SILVER. That is my belief, yes.
Senator BIDEN. It is a little worrisome to me. I understand the
problem but I wonder-you know it is a little bit like proving posses-
sion of stolen goods without introducing the goods in evidence.
Mr. SILVER. That occurs all of the time. Possession of stolen goods
is proved by testimony of witnesses who saw the defendant in posses-
sion of them. The defendant can be convicted of, let's say, stealing a
television set without the wiring of the set having to be exposed in
the courtroom or even the exterior case and many of the espionage
cases that have arisen have involved a count of theft of Government
property and have, as the Kampiles case did, involved the particular
nature of the document in only its broadest outline with no real neces-
sity to lay the entire thing before the court or the jury or, most im-
portantly, the public.
Senator BIDEN. Do either of you gentlemen, like Mr. Silver have any
difficulty with the provision that would require Justice to promulgate
guidelines specifying factors to be used in deciding whether or not to
prosecute?
Mr. SCHWARTZ. I have no problem with that provision. I share with
Mr. Silver some minor pessimism as to what effect it will have, but
I have certainly no problem with it.
Senator BIDEN. Can you elaborate on that for me? Why are you
pessimistic?
Mr. SCHWARTZ. I assume, considering the normal prerogatives that
the Justice Department holds to itself, that is the discretion to prose-
cute in an individual case, that any guidelines that would be promul-
gated by the Department would have sufficient leeway that there would
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be room to move within them.. It would not be a detailed A 'through M
kind of step-by-step process that would, that you could apply an in-
stant and automatic formula and come out with the result at the end.
Mr. RusHFORTH. I will only say, Senator Biden, that I fully share
your concern that times change and people change, but I will add
that there is absolutely no substitute, as far as I know, to having a
person like Phil Heymann occupying his present position. There just
is none.
Senator BIDEN. I appreciate your answers. One more question, and
this requires a very subjective answer. It is all right if you want to
decline answering it because it is so speculative. You three gentlemen
have been involved a long time and have had to make these sometimes
tortuous decisions as to whether or not to proceed, balancing the ques-
tion of national security versus the desire to enforce the law and pros-
ecute those who violate it or compromise our security.
No one is in a better position to tell us how much this bill, if en-
acted, will impact upon the ability to prosecute the offenders that have
come before you, the instances that have been brought to your atten-
tion. Will it capture all of the cases? Do you think it will capture
most of the cases? It seems obvious that this does not solve the whole
problem. There are still going to be cases where the Government will
have to decide, even under this legislation, not to proceed.
Can you quantify in any way what your best judgment as to how
much of the problem will legislation of this nature be able to address
itself to? You may not want to even take a guess at it.
Mr. SILVER. Well, with all the reservations that you built into the
question, 'Senator Biden, my own view is that it would solve a very
large majority of the cases with which I have had experience, maybe
75 to 95 percent of the problems. It will not solve the out-and-out
blackmail phenomenon where someone holds secrets that are totally
unrelated to prosecution and threatens to expose them if there is a
prosecution. That is an extremely rare phenomenon. I personally don't
know of any such case but it certainly is conceivable and no piece of
legislation of this sort would stop that, but otherwise I think it would
make a very significant improvement in the situation.
Mr. SCHWARTZ. From our standpoint I think that the largest impact
would be on the other kinds of criminal cases not directly related to
espionage kinds of cases where there may be material responsive to
various kinds of discovery-defendant discovery-which causes us a
great deal of problems in providing, even though they may be totally
irrelevant or largely irrelevant to the specific kind of case at hand.
This legislation would go a long way toward solving those kinds of
problems for us.
Mr. RIJSHFORTH. I think it would solve every case I have had any-
thing to do with. That is not to make a prediction about the future.
Very, very competent and clever defense lawyers are going to be able
to make life difficult for prosecutors even under this legislation, but I
agree with Mr. Silver that, based on my experience, it would go a
very long way toward solving the problems in the overwhelming
majority of the cases.
Senator BIDEN. I said I only had one more question, but there is
an additional one I would like to ask and I promise this is the last
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question. In the House hearings, Mr. Heymann and the former CIA
General Counsel, your predecessor, Mr. Lapham, testified that
the-if my recollection serves my correctly-that the Jencks Act has
not been a problem.
First of all, I would like to ask all three of you if you agree with that,
assuming my recollecticn is correct and if you do agree and it is not
a problem, why change it now?
Mr. RUSHFORTH. Well, I can only say in my experience it has not
arisen in that context, in the litigation with which I am intimately
familiar in this area.
I do however agree with Mr. Heymann's testimony on the point that
if it did arise, and from my own experience I have to say that is a
theoretical proposition and a hypothetical proposition at this point,
but if it did arise, it would pose a problem that would be so serious as
to perhaps warrant the dismissal of the case. It would be a very seri-
ous problem and the solution proposed by Mr. Heymann, it seems. to
me, is a solution which would not compromise the right of the defend-
ant to have access to impeachment material.
Mr. SILVER. I would have said some time ago, Senator, that it was
no problem, but I have been educated by experience in the meantime.
I think it is a rare problem but, in fact, situations that have arisen
suggest to me that these provisions on the Jencks Act may make a dif-
ference in actual cases.
Mr. SCHWARTZ. I have had no experience where this has been a prob-
lem although there clearly are situations where it. could occur.
Senator BIDEN. Well, gentlemen, I have raised my last question. I
appreciate your time and effort in this area and thank you for your
cooperation, and tell Admiral Inman I said hello. If I were President
I would make Admiral Inman king, I think. He is the sharpest per-
son I have run across.
[The prepared statements of Messrs. Rushforth, Silver, and
Schwartz follow:]
PREPARED STATEMENT OF BBENT N. RU5HFORTH
Mr. Chairman, I appear before you today as the representative of the De-
partment of Defense to testify with respect to proposed legislation governing
the use of classified information in criminal trials. In the course of this state-
ment I will address S. 1482 and. the companion bill in the House, H.R. 4745.
In the Attorney General's letter of July 9, 1979, transmitting the adminis-
tration bill, H.R. 4745 to the Congress, he remarked that : "While it is not pos-
sible to resolve completely the tension between the Executive's prosecutorial
responsibilities and its duty to guard against disclosure of sensitive national
security information, we believe that the procedures contained in the proposed
legislation would significantly enhance the governments' ability to discharge
these responsibilities without undercutting the defendant's right to a fair trial."
I support this proposition, and hope that the views expressed today will pro-
mote a full and objective deliberation of the issues.
As the statement by Assistant Attorney General Heymann provides an exten-
sive analysis and rationale for the position of the executive branch, I will con-
fine my remarks to a discussion of the interest of the Department of Defense
in this legislation, and how and to what extent those interests have been met.
The legislative proposals seek to create a workable, effective, and equitable sys-
tem whereby criminal prosecutions involving national defense secrets may go
forward without either undue risks to the national security, or to the due process
rights of the defendant. Enactment of properly framed legislation would provide
a long needed remedy.
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The first accomplishment of this legislation is the establishment of a carefully
crafted set of procedures whereby classified information may be protected under
carefully controlled conditions throughout the trial and appeal of a criminal
case. During hearings before the House Intelligence Committee, there was ex-
tensive testimony about the evidentiary and safeguarding problems that arose
in the prosecution of the Kampiles case involving a highly sensitive document.
It is clear from the experience in that case, as well as in previous espionage
prosecutions, that ad hoc procedures are unsatisfactory. Under the proposed
legislation there would be an orderly procedure whereby evidentiary and testi-
monial issues involving classified information would be addressed and resolved
in pretrial bearings. Of particular importance to the Department of Defense
are inclusion of provisions which would :
(1) Require notice to "the Government that classified information is to be
disclosed;
(2) Require in camera proceedings to determine whether the information is
relevant, material and otherwise admissible in evidence ;
(3) Provide for rulings to determine whether pretrial or trial disclosure of
classified information may be made, and in what form ;
(4) Permit alternatives to disclosure of specific classified information in a
manner consistent with a fair trial ;
(5) Enable the Government to file interlocutory appeals from court orders
relating to the disclosure of classified information ; and
(6) Provide for specific protective orders to safeguard classified materials
disclosed to the defendant.
H.R. 4745 addresses each of these matters, and to a lesser extent so does S.
1482. Of special importance to the Defense Department is the need to spell out
the specific terms of the protective order as provided for in section 4(a) of H.R.
4745. S. 1482 does not, and should be amended so that uniform procedures would
be employed in each of the courts faced with the handling, storage and access
to national secrets.
The Interests of the Department of Defense are also served in another way by
this legislation. Heretofore, a number of espionage and leak cases have not been
investigated or prosecuted because the risks of additional disclosure during trial
were too high. With the protection provided the legislation, we believe that there
will be less reluctance to prosecute offenders. In this connection, I refer not only
to cases in which classified information is directly relevant to the prosecution of
the case, e.g., U.S. v. Dedeyan and U.S. v. Boyce and Lee involving espionage, but
also to instances in which classified information is part of the defendant's affirm-
ative defense, e.g., the Helms case. Unless the Government acts in proper cases,
not only will there be a loss of confidence in our judicial system, but also dimin-
ished observance of our security rules.
While S. 1482 and H.R. 4745 contain a number of common provisions, there
are a number of distinctions that warrant comment.
Reciprocity.-Section 6(c) of S. 1482 provides that whenever the court deter-
mines that classified information may be disclosed the court may order the
United States to disclose any rebuttal information to the defendant. Under
section 6(b) (2) the United States shall upon request of the defendant also
furnish a bill of particulars as to portions of the indictment that relate to the
classified information at issue. In our view, under S. 1482 the information
required to be provided by the defendant prior to trial is more than matched
by the disclosure required of the United States. Section 6 of H.R. 4745, on the
other hand, provides for a balanced exchange of information. Upon being noti-
fied that the defendant expects to use classified information the Government
must notify the defendant about the information that will be in issue. It must
then either identify the specific information if it has been previously released
to the defendant, or if not previously released describe the information by
generic category. There is no requirement to provide rebuttal documents or a
bill of particulars, and in our opinion there should be none.
Proseeutive Guidelines.-Section 12(a) of S. 1482 calls for the issuance of
prosecutive guidelines by the Attorney General, and for transmission of those
guidelines to the appropriate congressional committees. While the Department
of Defense is not fundamentally opposed to this provision, it questions the need
for it. Under existing practice, agencies referring leak cases to the Justice
Department for possible prosecution are routinely required to answer a series
of questions regarding the validity of the classification, the degree of dissemi-
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37
nation of the material compromised, and whether the information can be
declassified for purposes of prosecution.
The existing guidelines have been furnished to the appropriate congressional
committees, and have been reprinted in committee reports available to the pub-
lic. As a consequence, a statutory requirement seems, unnecessary, at least as
to the prosecution of espionage and leak cases.
Findings.-Section 12(b) of S. 1482 provides for the preparation and dissemi-
nation to the Congress of detailed written findings in any instance in which
the United States decides not to prosecute because of possible revelations of
classified information. To prepare and disseminate written reports that describe
the classified information and the consequences of its disclosure in every case
unnecessarily increases the risk of compromise. In some instances, the case will
involve extremely sensitive matters. If the Oversight Committee needs infOr-
mation in a particular case, it can be provided in an appropriate briefing. Con-
sequently, we strongly oppose the routine submission of written reports.
Jencks Act.-Section 10 of H.R. 4745 amends the Jencks Act, 18 U.S.C. 3500
(c), by providing that the portions of a witness' statement may be withheld
from the defendant that are determined by the court to be (1) properly classi-
fied and (2) consistent with the witness' testimony. S. 1482 contains a similar
provision, but requires an affidavit from the Justice Department certifying that
the information is classified. In our view this affidavit should be furnished by
the agency originating the document. We also believe that if the witness' state-
ment is consistent with his testimony no provision should be made for offering
the defendant a summary of the classified portion. In our view, the amendment
in H.R. 4745 permits classified information to be protected without prejudice
to the rights of the defendant.
In summary. H.R. 4745 is preferred because it offers greater protection to na-
tional security secrets. It would also provide a much needed legislative remedy
for the "disclose or dismiss" dilemma. We commend the Committee's initiative
and efforts in attempting to reconcile the several competing interests that must
be accommodated in this legislation.
PREPARED STATEMENT OF DANIEL B. SILVER
Mr. Chairman and members of the committee, I appreciate the opportunity to
testify concerning S. 1482, the Classified Information Procedures Act. The so-
called "graymail" problem which this bill addresses is one of the most pressing
concerns that I face in carrying out my duties. New law to deal with this prob-
lem is a principal legislative priority of the Central Intelligence Agency. Indeed,
Admiral Turner has told me on several occasions that of all the difficult decisions
he has faced as Director of Central Intelligence, some of the most agonizing have
involved the tension between his statutory duty to protect intelligence sources and
methods and his desire to facilitate enforcement of the criminal laws of the
United States. I know that he wholeheartedly supports enactment of "graymail"
legislation.
I will make a few brief remarks about specific features of S. 1482 as compared
with the administration's own proposal, H.R. 4745. I want to note at the outset,
however, that both bills contain common features that would bring about a sig-
nificant improvement in the existing situation.
Under current law and practice, criminal litigation in which classified intelli-
gence information may be involved creates severe problems for the intelligence
community. These problems arise in three main areas :
The first is cases of espionage or unauthorized disclosure of classified informa-
tion. In my experience, first as General Counsel of the National Security Agency
and then as General Counsel of the Central Intelligence Agency, a substantial
number of unauthorized disclosures and acts of espionage have not been pursued
because it was evident that prosecution would force the Government to risk dis-
closing additional, even more damaging, classified information. To the extent that
new law can ameliorate this problem, the intelligence community believes there
is a pressing need to do so.
A second area of great concern is enforcement of the criminal laws in matters
not directly affecting the interests of the intelligence community. In a variety of
situations, tangential involvement of intelligence agencies with persons accused of
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38
crimes has enabled such persons to exploit the threat of disclosure of intelligence
secrets as a means of hampering prosecution. As officers of the U.S. Government
sworn to uphold the Constitution and laws of the United States, we deplore this
phenomenon as much as do the attorneys in the Criminal Division of the Justice
Department.
Nonetheless, we have a duty to protect intelligence sources and methods from
disclosure in the interests of enhancing the national security. In doing so, we
frequently become involved in painful differences of opinion with our colleagues
in the Justice Department, and the intelligence agencies are often the subject
of severe public criticism for allegedly preventing the prosecution of wrongdoers.
Obviously, we have a strong interest in graymail legislation that would remove us
from an uncomfortable position in which our motives are frequently
misunderstood.
The third area of concern has to do with intelligence agency employees. Some
of the proponents of graymail legislation seem to view as its principal advantage
the notion that it will permit incarcerating a large number of intelligence officers.
This is nonsense. As in any large organization, however, occasionally, but for-
tunately infrequently, an intelligence agency employee will commit a crime, such
as misappropriation of Government funds. When such an employee has been en-
gaged in clandestine intelligence activities, it is virtually impossible to prosecute
the case without disclosing intelligence source and method information and with-
out the risk that the defendant will contrive some means of dragging further in-
formation into the case. It is frustrating to the Agency's management and to
our overwhelming majority of honest and upright employees that the full
measure of the law cannot be visited on the occasional miscreant. We would wel-
come graymail legislation that would solve this problem.
The great advantage of both S. 1482 and H.R. 4745 is that these bills would
bring about a substantial reduction in the number of difficult, and often un-
necessary, confrontations between the interests of criminal law enforcement
and the protection of intelligence sources and methods. They would do so by
clearly confirming the power of the courts to employ procedures that will bring
a measure of certainty and predictability to the prosecutorial decisionmaking
process. The most important feature of the bills is that they create a procedural
framework for orderly determination of what sensitive information will be
needed to support a prosecution. The essential features of this framework are
prior notification of intended use of classified information, early determinations
of whether and in what manner the information at issue may be used in a trial
or pretrial proceeding, and interlocutory appeal by the Government of adverse
trial court rulings on these issues.
These are several points in which S. 1482, in my view, is less desirable than
H.R. 4745, and I would urge this Committee to consider modifying the bill accord-
ingly. These are as follows :
(1) Section 3 of S. 1482 provides that a court shall enter a protective order
but does not define the acceptable scope of such an order. In contrast the anal-
ogous section of H.R. 4745 lists seven specific items that may be Included in
such a protective order. Experience in national security-related cases has demon-
strated that these Items are the most important kinds of protective provisions
necessary to preserve the security of Intelligence information and that the courts
sometimes are in doubt as to whether they have power to impose them. The list
is permissive rather than mandatory, but serves a useful purpose in making clear
the authority of the courts to order certain protective measures.
(2) Another major difference between S. 1482 and the administration's bill,
H.R. 4745, is the omission, in S. 1482, of the specific "relevant and material"
finding that a court must make before classified Information can be used at a
pretrial or trial proceeding. We would, of course, prefer the stricter language
of the administration bill in order to protect classified information from unneces-
sary disclosure.
(3) A third major difference between S. 1482 and H.R. 4745 is that S. 1482
omits the section (section 8(c)) which would permit the Government to prove
the contents of a classified document without actually Introducing the original
or a duplicate Into evidence. I strongly urge this committee to include such a
section In S. 1482. Such a section would allow other evidence, such as testimony,
to prove the matters for which a document would otherwise be admitted into
evidence and, thus, enable the Government to Drotect some classified Information
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in the document from unnecessary disclosure. This provision could be particu-
larly, useful in a case under 18 U.S.C. section 794, involving an unsuccessful
attempt to deliver classified documents to an agent of a foreign government.
Where attempted espionage has been nipped in the bud, it would be particularly
unfortunate ? if the Government had to disclose publicly the very information
it had prevented the defendant from passing to a foreign power. By relying on
testimony to prove that the, particular documents involved were related to the
national defense, the Government could minimize the damage to the national
security that would result from introduction of the documents in evidence.
Through testimony the Government would be able to focus on specific matters
of its choice to prove that a given document relates to the national defense, with-
out exposing the entire document at public trial.
Classified photographs are a type of documentary evidence for which sub-
section 8(c) of H.R. 4745 would seem particularly well suited. The defendant
would be free, of course, to cross-examine in detail on any matter put into evi-
dence by the Government or to introduce classified information on his own
behalf if notice has been given under section 5 and the procedure established
by section 6 has been followed.
I would like briefly to comment on provisions of S. 1482 that I consider
particularly, important :
(1) Section 4 is indispensable. Without it, the remaining protections in the
bill can be rendered nugatory by aggressive discovery tactics on the part of
defendants.
(2) Section 8(b) empowers the court to order the excision of part or all of
the classified information contained in a document to be admitted in evidence.
This provision will allow for the protection of classified information not central
to the purpose for which the document is to be admitted into evidence. The
Government was able to delete some sensitive, classified information from the
highly classified manual that was introduced in the Kampile8 espionage prosecu-
tion because the defendant gave his consent. Section 8(b) would allow the court
to order such deletions over a defendant's objection.
(3) The final provision in section 8 permits the Government to object during
the examination of any witness to a question or line of inquiry that may result
in the disclosure of classified information that has not been found previously
to be admissible pursuant to the procedure established by section 6. This provi-
sion is of great importance in order to prevent the intentional or inadvertent
premature disclosure of classified information at trial, by permitting the Govern-
ment to object and obtain a ruling from the court on the applicability of the
in camera procedure established by section 6.
(4) A particularly important feature of the bill, found in section 8(a), pro-
vides for documentary evidence to' be admitted at trial without change in its
classification status. This would permit the Government to introduce a docu-
ment classified "secret" as it is, with no requirement for formal declassification
or removal of classification markings. In the past, CIA and other entities of
the intelligence community have been called upon by the Department of Justice
to declassify documents said to be needed to support a prosecution. If such
documents are validly classified, however it makes little sense to call for their
declassification simply because they will be used in some fashion at trial.
Declassification necessitates a finding that public disclosure will not harm the
national security-a finding at odds with an essential element of the crime under
many espionage laws. Furthermore, the rules on classification do not require that
a document be declassified in order to be shown to a limited number of uncleared
users, if circumstances make it in the interest of national security to do so. The
use at trial of a validly classified document recognizes the reality of a situation
in which a national security risk is being taken to achieve a law enforcement
purpose that cannot be achieved without some risk. Under section 8(a), it would
be left up to the agency involved to determine if a particular document has been
so compromised through use at trial as to require formal declassification. If
no declassification is classed for, such a document would be subject to continued
protection under the security procedures called for by section 9.
(5) The security procedures required under section 9 are also of great im-
portance to the intelligence community. I suggest inclusion in the bill of the
security measures listed in section 4 of H.R. 4745, pending the establishment
of more specific procedures by the Chief Justice.
The CIA views the security procedures required by the bill to be a necessary
part of the procedural framework established by the legislation. Under the bill,
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classified information will be submitted to the courts in a variety of contexts.
Some classified evidence may be introduced at trial in a manner which will not
put it in the public domain. For example, classified information would be sub-
mitted to the court by the Government under section 6 of S. 1482 to demonstrate
to the court that an in camera proceeding is warranted. It is contemplated that
some such 'submissions would involve disclosures of classified information to
the court in greater detail than would be necessary for trial. Such submissions
will call for the highest degree of protection. After the in camera proceeding and
the court's ruling on admissibility, there is the possibility of appeal by either or
both the Government and the defendant. In such situations the documents in-
volved will presumably leave the custody of the trial court and be transferred
to a court of appeals. On appeal, classified briefs may be written and classified
affidavits filed. The appellate process will present great risks of inadvertent
disclosure or loss of classified materials unless there are uniform and strict
procedures to guard against such occurrences. Fortunately, the Foreign Intelli-
gence Surveillance Act of 1978 has broken the ground in this area. Under that
Act, the Chief Justice, in consultation with the Attorney General and the Director
of Central Intelligence, has promulgated security procedures that effectively
safeguard the classified information involved in applications to the FISA court.
I am confident that similar effective procedures will be established if S. 1482
Is enacted.
In closing, I would like to thank the committee for this opportunity to present
my views on this important legislation, and to commend the committee for its
efforts to find a solution to the legitimate but painful dilemmas that arise when
sensitive intelligence information is drawn into the prosecution of criminal cases.
I believe S. 1482 contains the elements of a sound and equitable solution to the
graymail problem, although it could be strengthened in certain ways. If this
legislation is enacted, I am confident that the Director of Central Intelligence,
the intelligence community, the CIA, and the Department of Justice will be able
largely to, eliminate the graymail phenomenon and to protect legitimate national
security information from unnecessary disclosure, while at the same time ensur-
ing effective and impartial enforcement of the laws and a fair trial for every
defendant.
I appreciate this opportunity to testify on behalf of the Director of the National
Security Agency concerning S. 1482, the Classified Information Procedures Act.
This proposed legislation, the so-called "graymail legislation," would establish
specific pretrial and trial procedures governing the use of classified information
in connection with criminal prosecutions. S. 14s2 is similar to the proposed legis-
lation submitted on behalf of the administration, H.R. 4745. The Justice Depart-
ment and each of the agencies of the intelligence community have participated
in the development of the administration proposal. Each of us view this legisla-
tion from the standpoint of a number of issues of common concern, as well as
some issues that are unique to our individual missions.
Because of the extensive hearings that have already occurred, and the other
testimony presented today, I do not believe it is necessary to present a detailed
description and analysis of this legislation. Instead, I propose to describe, in gen-
eral terms, the particular concerns of the National Security Agency, and how
those concerns would be affected by this legislation. In general, we support the
enactment of S. 1482, and believe that it would provide a significant step forward
in improving the Government's incentive and ability to prosecute existing crim-
inal statutes without forcing the unnecessary publication or dissemination of
classified information. This legislation establishes uniform procedures for the
handling of classified information which are, in my view, a healthy compromise
among the interests of the intelligence agencies in protecting classified informa-
tion, the interest of the Justice Department in prosecuting the range of cases in
which classified information may become relevant, and the interests of defendants
in such cases.
My own experience with the type of case that has given impetus to this legis-
lation and with the legislation itself has been rather brief. However, during my
short tenure as General Counsel at NSA, I have been closely involved in several
cases currently being prosecuted by the Department of Justice or being con-
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sidered for prosecution which span the relevant issues and which demonstrate
the problems posed by such cases for the National Security Agency and for the
proper protection of sensitive, classified information.
As you are aware, the signals intelligence mission of the National Security
Agency requires a unique set of security protections because of the fragility of
the sources of that intelligence. Even obscure references to information derived
from signals intelligence can alert a knowledgeable observer to the source of
the information, and, thus, can result in countermeasures that deny that source
to us, often negating years of effort, and adversely affecting the use of complex
and costly technical systems.
Most of NSA's classified information is protected by a particularly stringent
law enacted because of congressional recognition of the sensitivity of our sources.
Section 798 of title 18, United States Code, provides severe penalties for the
knowing and willful disclosure of classified information in the limited cate-
gories encompassing the two missions of NSA, signals intelligence and com-
munications security. These categories include codes, ciphers, cryptographic
systems and techniques related thereto, communications intelligence, techniques
and activities related thereto, and the results of communications intelligence
activities. Nonetheless, despite the existence of 18 U.S.C. 798 and other statutes,
pending or proposed prosecutions under other criminal laws bring increased
pressure for the release of information that we regard as properly classified and
often not directly relevant to the central issues in these cases.
Because of the nature of NSA's mission, its materials and documents may be-
come the subject of discovery and production disputes in both espionage or "leak"
related cases and a widely disparate group of criminal prosecutions. In fact,
this problem is not limited to criminal prosecutions, and we have experienced
the same pressures in civil actions relating, for example, to the antitrust laws.
In this regard, two points are especially troubling. There is an increasing
tendency to pressure the Agency to release in unredacted form classified infor-
mation not specifically relevant to the issues simply because the defense has
asked for the information. Second, there is substantial resistance to proposals
to substitute summaries for the actual classified documents.
The requirements of the Jencks Act can also force many of these conflicts
to occur in such cases. Similarly, motions under section 3504 of title 18, United
States Code, with respect to the existence of any indication of the use of any
electronic, mechanical, or other surveillance device in violation of the Con-
stitution or laws of the United States or any regulation or standard promulgated
pursuant thereto, raise similar questions. Defense counsel now almost routinely
use such authorities in an attempt to locate any sensitive information, regard-
less of its relevancy, in an effort to dissuade the Government from prosecuting
a particular criminal case.
Once classified documents have been obtained, under proper security proce-
dures, the defense usually requests the court to release some or all of the docu-
ments, despite their classification. While many reasons for release are advanced,
perhaps the most difficult to counter is the argument that there has been an
unauthorized and unsubstantiated public disclosure of portions of the informa-
tion. The fact that an unsubstantiated leak or speculation has occurred may
cause substantial harm in and of itself. The fact that little if any investigation
and no prosecution is likely to occur as a result of that leak is, of itself, par-
ticularly perplexing to us in the intelligence community. But to claim such
disclosures as a basis for making public sensitive, classified information and
documents greatly increases our collective chagrin.
The leak or speculation may be part fact and part fiction or sufficiently garbled
that foreign observers are not able to attribute the information to a particular
source or technique with a sufficient degree of reliability to warrant or justify
the institution of countermeasures. The release of an official confirmation at trial,
however, is likely to provide the necessary information to identify the source and
justify the countermeasures.
For example, look at the case of classified information the source of which is
confirmed as NSA. It is public knowledge that NSA has basically one intelligence
mission, that is signals intelligence, and basically one source for that intelligence.
Once NSA is associated with certain classified information, even the average
foreign observer can accurately deduce the source of the information or, at least,
narrow the options, and take appropriate countermeasures. Thus, there is an
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obvious and understandable reluctance on the part of NSA to accede to involve-
ment in court cases that risk disclosure of its sources and methods.
There are a number. of steps that would be taken in S. 1482 to improve this
situation, and to recognize more clearly the national security needs to protect
classified information while addressing the very real concerns of both the prose-
cution and the defense. These include :
1. Establishing procedures that would permit the identification of all intended
use of classified information by the defense in a criminal case without disclosure
of the information, and a ruling by the court in camera on the admissibility of
such information as evidence prior to the beginnnig of the trial.
2. Establishing procedures to permit interlocutory appeal of adverse court
decisions on these points.
In addition, S. 1482 takes steps toward limiting disclosure of classified docu-
ments or materials to a jury in espionage cases.
Although I favor the Administration bill, S. 1482 provides a significant improve-
ment over present procedures and goes a long way towards meeting the concerns
I have mentioned.
Senator BIDEN. Our next witness is Mr. Morton Halperin, Center for
National Security Studies. Good morning. Mr. Halperin I should also
not-correct me if I am mistaken-you are also representing the
ACLU? Is that correct?
Mr. HALPERIN. That is correct. I want to introduce my colleague
Alan Adler and we are appearing here
Senator BIDEN. Beg your pardon, the last name?
Mr. HALPERIN. Adler.
Senator BIDEN. Adler.
Mr. HALPERIN. Representing the American Civil Liberties Union as
well as the Center for National Security Studies, I would like to ask
that our statement be made part of the record.
Senator BIDEN. It will in its entirety.
STATEMENT OF MORTON H. HALPERIN, CENTER FOR NATIONAL
SECURITY STUDIES, ACCOMPANIED BY ALLAN ADLER
Mr. HALPERIN. Since I am aware of how familiar you are with the
issues, I thought the most useful thing night be just to focus on some
of the issues that have come up this morning and which still remain
in controversy. I want to reiterate our view that there is a substantial
measure of agreement. I think the main problem is the willingness of
the Government to be willing to go forward in these cases. I think we
are persuaded that these procedures would help give them the willing-
ness and the confidence to go forward and in that context we think this
could be an improvement over the current situation.
The basic principle that we think needs to be protected in this legis-
lation is that as far as the right of the defendant to have access infor-
mation and to introduce that information, the standard should not
change because the information is classified. We think with one excep-
tion this bill does that and we would oppose the changes suggested by
the administration which we think deviate from that position.
One provision of this bill which deviates from that rule is, of course,
the Jencks Act amendment. The Supreme Court, whether it was pro-
ceeding in terms of its supervision of the Federal judiciary or con-
stitutionally, clearly said the process of the judge deciding ex parte
whether the material can be used for impeachment purposes is dis-
favored is not permitted. The judge simply can determine whether it
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is on the same subject. Whether it can be used for impeachment,
whether it. is inconsistent, is not. a task that the judge cap perform.
This bill would say except when the information is classified.
Senator BIDEN. Now, for purposes of the record and for my educa-
tion, repeat that one more time, please.
Mr. HALPERIN. The Jencks Act decision says very clearly that the
procedure of having the trial judge decide, let me just read the sen-
tence : "The practice of producing Government documents to the trial
judge for his determination of relevancy and materiality without
hearing the accused is disapproved," and that seems to me a very
simple and a very clear statement.
The court goes on, in the very next paragraph, to talk about the
national security character of some of these documents-and T think
the decision makes it absolutely clear that the court was talking about
classified information as well as information which the Government
might not want to make public on. some other grounds-said very
clearly the Government has to choose between not making it public,
or not turning it over to the defendant, and dropping the prosecution.
It said the. burden is on the Government not to be shifted to the trial
judge to make those determinations. I think there is a question, to be
sure, whether the Congress could constitutionally alter that decision
but, in our judgment, it would be a mistake to do so. We also think it
would be unconstitutional. We think that the classified information
should be treated the same as any other kind of information. I would
also note that-excuse me one moment.
Senator BIDEN.. Mr. Halperin, have you or the ACLU submitted to
this committee a memorandum outlining your rationale for why you
believe it would be unconstitutional for us to proceed the way in which
we do in this legislation to alter the Jencks rule?
Mr. HALPERIN. We have not specifically addressed that. I would like,
if I might, to submit a memorandum to you.
Senator BIDEN. I don't want to make more work but as you point out,
it is a very, very important issue and I?would like very much if you
could do that, and as rapidly as you could because we would like to
proceed with this legislation relatively soon if we could. I think it is
very important for us to have that.
Mr. HALPERIN. We will submit that to you as soon as possible.
[The memorandum was supplied and is listed in the appendix.]
Senator BIDEN. Thank you very much. I notice you looked at Mr.
Adler. Sorry, Mr. Adler. You didn't want to do anything this week-
end anyway.
Mr. HALPERIN. I should point out that the Government seems to be
confused about what the Jencks Act requires. It requires turning the
information over to the defendant. The question of whether it could
then be introduced would as I understand it, be subject to all the'pro-
cedures of this bill.
Senator BIDEN. That is my question, and that is why I asked you
to repeat and read the ' sentence, that you are making the distinc-
tion. You are suggesting that the Government failed to make the
distinction between having the defendant present and party to the
determination as to whether or not.
Mr. HALPERIN. That's right.
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44
Senator BIDEN. And not whether or not you could walk out of the
chambers and into the courtroom and then proceed to disclose that
information.
Mr. HALPERIN. Absolutely. As I understand what would happen,
the material would have to be turned over if the trial judge decided
it was on the same subject. The Government could then invoke the
procedures of this bill to say that if they are going to try to intro-
duce it, we want an in camera, adversary hearing on whether or not
it is relevant. The Government would then have the opportunity to
argue to the trial judge that it is not relevant for impeachment.
Senator BIDEN. In the presence of
Mr. HALPERIN [continuing]. In the presence of
Senator BIDEN [continuing]. The defendant.
Mr. HALPERIN. Of the defendant, but under a protective order which
would prohibit further disclosure of that information, and that seems
to me to protect the interest the Government has. The bill in gen-
eral requires them to turn over material which is classified and I just
don't understand why they propose a different procedure for the
Jencks material, which is the one area where the Supreme Court has
spoken very clearly and very precisely on this issue.
I want to say, part of the same principle applies to three other issues
that have come up. One is the question of the admissibility standard. It
is obviously very confused as to what the standard is, both for dis-
coverability of material and admissibility. We would object to the
relevant and material standard if it purports to change it, if it pur-
ports to have a higher standard for classified information than un-
classified. We think there cannot be a different standard. We think
the cases make that clear. If relevant and material is the standard for
all information, which it may be, then there would not be an objec-
tion, but since the purpose of the Justice Department asking for that
change is to have a higher standard, we would object to that.
I should note that the standard in the Roviaro case is relevant and
helpful and not relevant and material. So I think it is a little mislead-
ing for the Justice Department to say that the relevant and material
standard comes out of that case and I think, indeed, that case, while it
is always cited as establishing the privilege, was the case in which the
court overruled the Government's attempt to assert that privilege and
said in effect where the information is helpful to the defendant
Senator BIDEN. That is the word used, helpful?
Mr. HALPERIN. Relevant and helpful is the standard that-the de-
cision was written by Justice Brennan and the dissent only argues as
to whether in fact it was helpful to the defendant. So the view that this
case is support for the proposition that even for the informant stand-
ard you can withhold it from the defendant on some higher standard
than any other evidence seems to me to be misplaced.
In any case, the court in that case is very clear to say that the privi-
lege comes from the obligation of the citizen to report crimes to the
police and therefore the requirement of the court to protect the citizen
who brings forward that information.
I think there is no suggestion in any case that I know of that the
right of the Government to withhold national security information
derives from that kind of requirement.
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Senator BmEN. So you are making the distinction between, again,
the party to be protected?
Mr. HALPERIN. That's right, and just as you did in the case of rape?
Senator BIDEN. Let's take the example that was offered by one of the
agencies this morning. Or maybe it was the Justice Department where
the information attempting to be excised by the prosecution relates to
the naming of an unrelated, unconnected, not helpful CIA agent. The
disclosure of that name would jeopardize that person's personal se-
curity. Now, what you are suggesting here is that the court should not
be in a position to be able to on its own make the determination that
that person's name is irrelevant or immaterial in this case, and that the
prosecution would at that point have to make a judgment as to whether
to proceed or drop the case.
Mr. HALPERIN. But, not making it public. Giving it to the defendant
under a protective order and then if the Government is right that it
was not an inconsistent statement, could not be used to impeach the
witness, they would argue that before the judge in an adversary in
camera hearing and if they were right presumably the judge would
sustain them on the basis of that adversary hearing and then the in-
formation would not be made public.
It is also the case that they can call a different witness. The problem
arises only if the Government has only one witness to some portion of
the transaction that it has to prove, who apparently not aware of what
the Jencks Act requires, put in a statement which he made-informa-
tion which was not in fact relevant and which was highly classified.
I would suggest the Government might want to inform people
involved in such cases of the requirements of the Jencks Act. The
Jencks Act does not require the preparation of statements, it simply
says that if there are prior written statements of a witness they have to
be turned over and it seems to me that the certain amount of adminis-
trative care can deal with this problem and that it is seldom the case
that the witness is indispensable.
Now, the one case that we know about, which may have been one of
the cases that the CIA witness was alluding to was the Trung case
which as we point out in our statement, there is a great deal of contro-
versy precisely about the question of the relevance of material for the
impeachment of the Government's key witness in that case. There were
prior statements. She was a key to the case, she is the only evidence to
the alleged transaction. That case, I think, shows precisely the problem
of having the trial judge decide that because the question of what is an
inconsistent statement is, as the appeal briefs in that case show, a mat-
ter of substantial controversy.
What seems to the defense lawyers, and let me say what seems to me
in reading the brief, clearly information that was relevant to the im-
peachment of the witness and went to inconsistent statements, was in
the position of the Government not an inconsistent statement. It seems
to me in that case at the very least the trial judge ought to have an
adversary hearing where he makes that determination.
On the question of proof by not introducing the document, here
again, the proposed change by the Government would violate what
seems to me the basic rule that the fact that the information is classi-
fied should not change the way in which a trial is conducted. If the
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46
best evidence rule requires the introduction of it, it should in fact be
introduced. The Government should not be able to introduce evidence
about the content of the document.
Here I would distinguish as well in discussing the question of
declassification which is the last issue I want to mention. The problem
for the Government in espionage cases is that the content of the docu-
ment is relevant to the proof. Unlike a television set-I mean it would
be as if you had a statute that prohibited you from stealing television
sets only of a certain quality and you wanted to prove that without
turning on the TV set.
The statutes require that you prove that the information relates to
the national defense. The Supreme Court has said that that is factual
issue for the jury and therefore the Government has to prove some-
thing about the content of the document and to suggest that it can
prove it without introducing the document seems to me to violate all
the principles of a public trial.
I would say that even more clearly about the proposal that the
information not have to be declassified. This issue did come up in the
Pentagon papers case in the indictment of Ellsberg and Russo. It was
briefed extensively, argued in that case. There was a ruling by the
district court judge that it was very clear. He said the material did
not have to be declassified, that it is an administrative decision of the
Government, but the information has to be public. The Supreme Court
in the case involving the Watergate tapes, I think, made it clear, that
what is introduced in evidence in a trial is public and is available for
public inspection and that is the essence of a public trial. .
We do not object to the provision that says that the information
does not have to be declassified because we think the question of de-
classification is an administrative decision to the executive branch.
But, if that provision is read to mean that secret evidence can be intro-
duced at a trial, which goes to the jury for them to make a factual
determination, without that information being made public, then we
think that is clearly unconstitutional. We would object to the inclusion
of that provision unless this committee made it very clear that it was
simply saying it is an administrative matter, the Government need
not be declassifying but the evidence is nevertheless available for
public inspection in the courthouse according to the normal rules of the
court as to the availability for public inspection of Government
documents.
The only other point I want to make and I don't think there is a
controversy about this, although it is not clearly on the record yet, I
think there is a possible ambiguity in the language which would per-
mnit the court to issue a protective order which would prevent a de-
fendant from making public outside the trial information which was
.in his possession prior to the beginning of the indictment. We think
that is clearly unconstitutional. The Government should not be able
to use this procedure to get around the presumption against prior
restraint by indicting somebody who has access, who knows some-
thing classified, and then moving for a protective order within the
case. I don't think that is anyone's intent and the Justice Department
testimony talks about material provided by the Government to the
defendant but I think that should be made clear.
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Finally let me say.---
Senator BIDEN. That is the intention of the drafter of the legislation.
Mr. HALPERIN. I think that is right, but I would prefer at least in
the report it be made absolutely clear that that is not permitted.
Let me say finally that. on reflection about this, we. prefer the pro-
cedure in the House bill, reported now by the subcommittee rather
the procedure of this bill as it relates to the order in which the judge
makes his determinations.
The House bill has the judge determining the question of discovery
or admissibility before he grapples with the issue of whether it can
be redrafted or summarized or an admission being made of a fact,
rather than having the judge do that at once, which this bill seems to
require. It seems to us a more orderly process and it avoids the danger
that the court will take account of the classification of the material
in making that initial decision which we don't think the court ought
to do.
Let me, Mr. Chairman, express my admiration to you for your per-
sistence in. dealing with this issue and relate our feeling that in fact
there is very little disagreement. As I heard the testimony from the
various agencies, despite what they said in the end in specific response
to the Jencks Act, I think most of what they want is embodied in pro-
visions of the bill that are clearly constitutional and they are not
controversial and it would seem to me that we ought to try to move
ahead on the basis of that agreement.
Senator BIDEN. Thank you very much, both for the compliment and
the testimony. I would like to pursue the protective order question a
little bit further but from a slightly different angle. I think it should
be noted for the record that at least it is my intention that a protective
order as encompassed in this legislation is not intended to be a mech-
anism to invoke prior restraint through the back door or front door or
whatever.
But, would a protective order suffice to protect national security
interests if disclosure of that highly classified material to an allied
agent, a foreign government, for example, at a Jencks hearing, might
further the mission of the agent? If he would still get more informa-
tion? I mean the protective order really doesn't help much there
does it?
Mr. HALPERIN. Well, if the person is in fact the agent of a foreign
power in a clandestine relationship, the protective order is not only a
problem with the Jencks Act material, it is a problem with all the
material turned over under the protective order. If you think you are
dealing with people who are going to secretly provide all of the in-
formation you give them under the protective order to a foreign power,
that is not a problem peculiarly related to the Jencks Act ; it is the
problem of all the material that-you turn over under the protective
order in a criminal trial of this kind.
I think in the case of the Jencks Act, the way to deal with that is
for the Government to order its procedures in terms of who gives prior
statements and what they contain. As far as the more general issue
is concerned. I think to speak personally, my view is that the prob-
lem is with the content of the espionage statute and that this issue can
only be dealt with by revision of the espionage laws and not by
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changing these procedures because as long as the law requires that the
Government prove something to the jury about the content of the
document, I don't see how you would get around that problem and I
think the issue is whether some actions ought to be made, independent
of the actual.content of the document.
Senator BIDEN. You noted, Mr. Halperin, your primary concern in
your statement is the first amendment ramifications of this legislation.
Is it your position that a judge cannot prevent the defendant from
publicly disclosing classified information that he or she intends to use
at a trial?
Mr. HALPERIN. It depends on where the defendant got the informa-
tion from. If it was provided by the Government at the direction of
the court under a protective order, clearly I think the court can prevent
further disclosure in or out of the courtroom. If it was information
that was in the head or the written possession of the defendant prior to
the indictment, then I think it would be unconstitutional to prohibit
the release of it outside the trial. The judge can, I think, prohibit the
release of it within the trial if it is not relevant material to the case.
Senator BIVEN. As usual you made your arguments very well, very
concisely, and very much to the point. I must tell you, as when I intro-
duced the legislation, I indicated I had questions about the provision
relating to the Jencks Act. You have not helped me clear them up. You
have continued to-you have added to my dilemma. I am still not cer-
tain it should be in. I am inclined toward your position on that partic-
ular issue. But, that is why I would:like very much, also to have the
legal memorandum and you need not worry about footnoting it as
much as you would for a court, but, just the rationale would be impor-
tant to me to have.
Mr. HALPERIN. Let me say a practical thing about that. The ACLU
would very much like to be in the position of not opposing the move-
ment of this legislation through the Congress. Unless we could be
reasonably assured that a Jencks Act provision would not end up in
the bill in the end of the process, our position would have to be because
of our strong feelings about that provision, to urge the bill not move.
I am persuaded on the merit that it is not important, that it is uncon-
stitutional, and that the provisions of his bill are adequate to deal
with that problem as well as the others. But I would also add that
practical
Senator BIDEN. No, I understood that to be your position and I ap-
preciate it. Thank you very much, gentlemen. I look forward to that
memo and I appreciate your taking so much time with the committee.
Mr. HALPERIN. Thank you. Mr. Chairman.
IThe prepared statement of Mr. Halperin follows:]
PREPARED STATEMENT OF MORTON H. HALPERIN
Mr. Chairman, we appreciate the opportunity to testify before this subcom-
mittee on S. 1482, the Classified Information Procedures Act. Our appearance
today is on behalf of the American Civil Liberties Union, a national member-
ship organization of some 200,000 members dedicated to the defense of free-
doms guaranteed in the Bill of Rights.
The problem of "graymail" is no less distressing for civil libertarians than
it is for the Department of Justice or concerned members of Congress. While
the danger of incidentally disclosing classified information has in the. past
thwarted the investigation or prosecution of private individuals suspected of
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such serious crimes as murder, bribery, and drug trafficking, it has also frus-
trated efforts to hold Government officials accountable under our criminal jus-
tice system.
"Graymail" is perhaps most vexatious.in the context of executive officials
who criminally abuse governmental authority and then escape punishment by
threatening to disclose or cause the disclosure of secrets to which they obtained
access by virtue of the same authority.
For executive officials who perform or are even tangentially connected with
the performance of intelligence functions, "graymail" can mean a virtual im-
munity from Federal criminal investigation or prosecution "in the interests of
national security"-even where criminal acts performed under color of office
deprive others of their constitutional rights.
From a civil liberties point of view, the rights of individuals cannot be fully
and effectively protected if such criminal conduct by Government officials cannot
be investigated and prosecuted to the full extent of the law. A solution to the
"graymail" dilemma would facilitate the administration of justice and contribute
to the protection of individual rights.
With respect to the proposed legislative solution now before this subcom-
mittee, we would offer two initial caveats concerning what the bill's procedures
would and would not do.
What the procedures in S. 1482 would clearly do is affect the rights of all
criminal defendants at trial. They would place upon such defendants an affirma-
tive obligation to notify the Government before trial of any intent to use "clas-
sified information" in pursuit of a particular line of defense. Specific sanctions
restricting the defendants' ability to defend themselves could result from de-
fendants' failure to comply with notification requirements. If compliance is
forthcoming, the procedures would, almost without fail, steer criminal proceed-
ings into the judges' chambers, out of the presence of juries, the public, the
press and, in certain instances, the defendants themselves.
In short, the procedures proposed in S. 1482 would thrust the oft-misused
claim df "national security interests" into what we believe is the heart of our
criminal justice system-the criminal defendant's constitutional right to a speedy,
public and fair trial.
What the procedures in S. 1482 would not do is solve the "graymail" problem.
Those procedures would not substitute for a firm willingness on the part of the
Government to fully pursue the investigation and prosecution of official law-
lessness, especially in the cases where the fair administration of justice would
require it to "bite the bullet" and make public classified information that is
relevant and otherwise admissible for purposes of defense or prosecution.
In our view, a lack of such willingness has been the primary impediment to
prosecutions directed at former top Government officials such as Richard Helms
and L. Patrick Gray. It is quite possible that the Government's apparent dis-
comfort in criminal investigations and prosecutions which raise the spector
of disclosing classified information has encouraged "graymail" efforts that were
really "fishing expeditions" rather than legitimate discovery requests for classi-
fled information. Some criminal defendants have probably been heartened to
"bluff' the risk or disclosure by noting the relative ease with which the Govern-
ment can be made to back down in such situations.
Our concern for the rights of criminal defendants and our view of the true
nature of the "graymail" dilemma do not, however, lead us to object to the con-
cept behind the procedures of S. 1482; that is, to permit a more orderly process
for deciding whether to go forward with prosecutions. The procedures would
permit the Government, in many cases, to learn before trial what classified
information would have to be made public to fully pursue prosecution. They
provide the Government with a means to avoid needlessly disclosing classified in-
formation which is not relevant to the defendant's case or is otherwise in-
admissible.
To the extent that the procedures would protect the existing rights of criminal
defendants, and still facilitate the prosecution of intelligence agency and other
officials who under control of law commit criminal acts which violate the con-
stitutional rights of others, we welcome consideration of S. 1482 and the holding
of these hearings.
Mr. Chairman, it is important to emphasize that we would oppose this
legislation if it were interpreted to authorize secret trials, or to permit judges
to issue gag orders prohibiting the press from publishing what it learns about
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50
any pretrial proceedings or the trial itself. We do not believe that it can be
interpreted in this way nor that it was intended to be.
We would also oppose this legislation if its effect was to authorize trial
judges to inhibit criminal defendants from releasing any information which
was in their possesison prior to discovery in a criminal trial except in connec-
tion with the trial or pretrial proceedngs. Thus, for example, if the bill were
read to authorize a judge to prohibit a defendant from making a speech or pub-
lishing an article revealing information in the defendant's possession, we would
oppose it on first amendment grounds. Any such provision would enable the
Government to circumvent the very strong presumption against prior restraints
even as they relate to national security information, New York Times Co. v.
United States, 403 U.S. 713(1971), Nebraska Press Association v. Stuart, 427
U.S. 5.39(1976), by indicting the person and invoking the procedures of this act.
Section 5(a) of S. 1482 may be subject to an interpretation authorizing such
orders, despite the reference in the section-by-section analysis to disclosure "in
a trial" and "during trial." Its language should be clarified so that such possible
interpretations must be rejected without dispute.
To pass constitutional muster,, the contemplated procedures must adhere
closely to certain constitutional principles enunciated by the Supreme Court.
Although S. 1482 intends to be consistent with such principles, we believe that
hearings and possible amendments, together with a precise legislative history
of the bill, would make that unmistakably clear.
The first and most fundamental principle is that the standard for discovery
and admissibility of evidence cannot be affected in any way by the fact that
the information involved is classified. This rule and the important considera-
tions of fairness that underlie it have been stated. by the Supreme Court as
follows :
* * * in criminal cases "* * * the Government can invoke its evidentiary
privileges only at the price of letting the defendant go free. The rationale of
the criminal cases is that, since the Government which prosecutes an accused
also has the duty to see that justice is done, it is unconscionable to allow it to
undertake prosecution and then invoke its governmental privileges to deprive
the accused of anything which might be material to his defense * * -" 345 U.S.
at 12.
In United States v. Andolscheck, 142 F.2d 503, 506 Judge Learned Hand said :
"* * * While we must accept it as lawful for a department of the govern-
ment to suppress documents, even when they will help determine controversies
between third persons, we cannot agree that this should include their suppression
in a criminal prosecution, founded upon those very dealings to which the docu-
ments relate, and whose criminality they will, or may, tend to exculpate. So
far as they directly touch the criminal dealings, the prosecution necessarily
ends any confidential character the documents may possess ; it must be con-
ducted in the open, and will lay bare their subject matter. The government must
choose; either it must leave the transactions in the obscurity from which a trial
will draw them, or it must expose them fully. Nor does it seem to us possible to
draw any line between documents whose contents bear directly upon the criminal
transactions, and those which may be only directly relevant. Not only would such
a distinction be extremely difficult to apply in practice, but the same reasons
which forbid suppression in one case forbid it in the other, though not, perhaps,
quite so imperatively. * * *"
Jencks v. U.S., 353 U.S. 657 (1957).-Indeed the government has generally
conceded this point. For example, the Supreme Court noted in a case involving
highly sensitive national security electronic surveillance records:
"The government concedes that it'must disclose to petitioners any surveillance
records which are relevant to the decision of this ultimate issue (of whether
illegally seized evidence was used). And it recognizes that this disclosure must
be made even though attended by potential danger to the reputation and safety
of third parties or to the national security-unless the United States would
prefer dismissal of the case to disclosure of the information."
Alderman v. U.S., 394 U.S. 165, 181 (1969).-Indeed the Supreme Court in
that case was unanimous in holding that a defendant was entitled to "arguably
relevant material whatever its impact on national security might be." Id. at
184 n. 15.
The second fundamental principle which the bill must reflect is that the
"burden is the Government's not to be shifted to the trial judge, to decide whether
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the public prejudice of allowing the crime to go unpunished is greater than that
attendant upon the possible disclosure of state secrets." Jencks v. U.S. at 672.
The trial judge must not make the decision as to whether the injury to national
security is limited enough to justify release of the information to continue the
prosecution. It is the judge's task to tell the Government that the court intends
to permit the information to be introduced into Evidence ; it is then the Govern-
ment's duty to make the decision to proceed with the case.
In this context, we believe it would be a major error to permit the Government
to explain to the court why the information at issue is classified, or even the basis
for the classification, prior to a judicial determination of relevance. The danger
is that the trial judge could permit the decision on relevance to be colored by the
claims of national security, real or exaggerated, made by the Government.
The third principle is that of reciprocity. The bill's requirement that defend-
ants disclose prior to trial what classified information, if any, they intend to
introduce at the trial, is constitutional only if it is accompanied by a requirement
for reciprocal disclosure by the Government. In Williams v. Florida, 399 U.S.
78(1970) and Wardius V. Oregon, 412 U.S. 470(1973), the Supreme Court consid-
ered the due process aspects of a criminal defendants' reciprocal discovery rights
when forced to comply with a State "notice-of-alibi" rule. In holding that such
rules could not be constitutionally enforced without providing the defendant
reciprocal rights of discovery, the court in Wardius strested that:
"* * * [i]n the absence of a strong showing of state interests to the contrary,
discovery must be a two-way street. The State may not insist that trial be run as
a 'search for truth' so far as defense witnesses are concerned, while maintaining
'poker game' secrecy for its own witnesses.
"It is fundamentally unfair to require a defendant to divulge the details of his
own case while at the same time subjecting him to the hazard of surprise con-
cerning refutation of the very pieces of evidence which he disclosed to the States."
412 U.S. at 475-476.
Having stated these principles, Mr. Chairman, we would now briefly discuss
the four substantial areas in S. 1482 in which they must be most carefully applied.
The most objectionable part of this bill is the provision which would modify
the Jencks Act. We understand that this proposal originated with the adminis-
tration and is virtually identical to the provision in H.R. 4745, which was intro-
duced in the House by Mr. Rodino at the behest of the administration. We would
strongly oppose passage of S. 1482 or any other classified information procedures
legislation if any provision amending the Jencks Act were included.
Such a provision violates the fundamental principles that no otherwise discov-
erable information can be withheld from a criminal defendant because it is classi-
fied. The provision would permit Federal trial judges to do for classified material
precisely what the Supreme Court said they cannot do for any information,
classified or not, that is included in a prior statement of a Government witness
which relates to that witness's trial testimony :
"The practice of producing government documents to the trial judge for his
determination of relevancy and materiality, without hearing the accused, is dis-
approved. Relevancy and materiality for the purpose of productton and inspec-
tion '. . are established when the reports are shown to relate to the testimony
of the witness. Only after inspection of the reports by the accused, must the
trial judge determine admissibility-e.g. evidentiary questions of inconsistency,
materiality and relevancy-of the contents and the method to be employed for
the elimination of parts immaterial and irrelevant." Jencks at 669. Citation and
footnote omitted.
That this rule must apply even when information properly comes within the
state secrets privilege was made clear by the Supreme Court in Dennis v.
U.S., 384 U.S. 855 (1966) and Alderman, supra.
In Dennis the Court stated that it is not:
"* * * realistic to assume that the trial court's judgment as to the utility of
material for impeachment or other legitimate purpose, however conscientiously
made, would exhaust the possibilities. In our adversary system it is enough
for judges to judge. The determination of what may be useful to the defense
can properly and effectively be made only by an advocate." 384 U.S. at 874-
875.
The Court went on to note that the trial judge's function is limited to such
measures as protective orders when "the nation's security" is involved. Id.,
at 875. It ruled that a task analogous to the determination of relevancy-deter-
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mining if illegally seized evidence had tainted evidence introduced at trial-
could not be performed by the trial judge ex parte. The Court explicitly re-
jected a proposal by the Government, supported by two members of the Court.
that national security information be treated differently, and held that even
when national security information might be revealed the trial judge could not
be permitted to determine if evidence was tainted. In reasoning directly ana'o-
gous to the task of determining if a statement can be used to impeach a wit-
ness, the Court noted : "The task is too complex, and the margin for error too
great, to rely wholly on the in camera judgment of the trial court." Alder-
man at 182.
The recent experience in U.S. v. Humphrey, Civ. No. 78-5177 (4th Cir., ap-
pealed August 16, 1978), illustrates the danger of any proposal to modify the
Jencks Act in "graymail" legislation. In its brief to the court of appeals in that
case, the Government conceded that under current law the trial judge may not
withhold prior statements of Government witnesses even if they are classified.
The Government argued, however, that certain material turned over to the court
late in the trial and partially made available to the defendants is not Jencks
material, and that even if it was it could not have been used to impeach the
Government's chief witness at trial.
The defense in Humphrey argued vigorously that the material was clearly
within the Jencks rule and that it could have been used to discredit the witness
to degree that an acquittal would have been likely.
Without going into the merits of this particular case, the controversy illus-
trates the difficulty of having the trial judge decide what might be used to im-
peach a witness. The case also demonstrates the inappropriateness of relying on
appellate review to correct any mistakes of the trial judge, since appellate
courts are less familiar with the facts and are in a far worse position to deter-
mine if the material could have been used effectively for impeachment. More-
over, the appellate court's traditional deference to the trial judge on factual
matters will mean that few convictions would be reversed for failure to provide
classified Jencks material.
Our second major area of concern involves the timing of the court's decision on
relevance and when it is informed by the Government as to the reasons for the
classification of the information. S. 1482 and H.R. 4745 permit the Government
to make an ex parte in camera presentation to the court of the reasons for classi-
fication before the court determines whether the information is admissable. Al-
though not intended by this provision, the court may well consider the conse-
quences of disclosure in determining admissability. We would. therefore, urge
that this committee preserve the procedures outlined in H.R. 4736, the "graymail"
bill introduced in the House by the chairman of the House Intelligence Subcom-
mittee on legislation, Morgan Murphy. These procedures may appear to be more
cumbersome because of the careful way the bill spells out each step. However,
in practice they would he no more complicated than the procedures in the admin-
istration bill.
The third major issue is that of the reporting requirements. We want to clearly
state our view that these provisions are among the most important in the bill. In
this context, we want to reiterate our earlier point that the problem in this area
is not "graymail" at all, but the Governmental will to prosecute. By requiring
the adoption of procedures and reports to the Congress, the legislation would
make it less likely that fears of institutional embarrassment over illegal or ill-
advised Government activities could successfully masquerade as a national se-
curity concern. Section 12 of S. 1482 would not in any way interfere with the
executive's responsibility for determining when 'prosecution should he pursued.
But that power, like all powers of the executive. is open to oversight and scrutiny
by the Congress. Oversight is also relevant to Congress' legislative power since it
bears on such issues as whether Congress should create a special office to conduct
all prosecutions involving classified information.
We believe that the reporting requirements in S. 1482 are well-suited to the
task, and we would strongly urge this subcommittee to resist any efforts which
might be made to dilute such requirements along the lines of the House Intelli-
gence Subcommittee mark-up amendment to the reporting requirements in H.R.
4736. That amendment reduced the case-by-case summaries, without specifying
the necessary written findings which must be included for each decision not to
prosecute. Such a provision would make a mockery of the clear objective of re-
porting requirements.
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One final major concern in regards to S. 1482 is the lack of an appropriate
standard for the exercise of the court's discretion to authorize the Government
to avoid disclosure of relevant classified materials by deleting specified items,
substituting a summary for the information desired, or substituting a statement
admitting relevant facts that the classified information would tend to prove.
Section 4 of the bill provides no standard at all, while section 6(b) (4) (B) offers
only the vague standard of not prejudicing the defendant's right to a fair trial.
We would recommend that S. 1482 be amended to include for such purposes
the standard adopted for H.R. 4736 in the House intelligence subcommittee's
mark-up of H.R. 4736. That standard would permit such deletions or substitu-
tions only if the court found that that standard would, for purposes of discovery
and court-ordered disclosures, permit such deletion or substitution only "if the
court finds that such action will provide the defendant with substantially the
same ability to prepare for trial or make his defense as would disclosure of the
specific classified information."
Mr. Chairman, permit us to state that we have a number of other objections to
H.R. 4745. We should also note that we prefer the structure and procedures of
H.R. 4736 to those of S. 1482.
Senator BIDEN. Our next witness is Mr. Michael Scheininger, but
before we proceed, there is a vote on, and I will recess this proceeding
for 10 minutes to go vote and we will come back and proceed and then
our last two witnesses will appear as a panel: Mr. Silbert and Pro-
fessor Greenhalgh of Georgetown Law Center. The hearing is recessed
for 10 minutes.
[.Brief recess.]
Senator BIDEN. Mr. Scheininger, how do I pronounce your name
correctly ?
Mr. ScrIETNINGER. That is correct, Mr. Chairman.
Senator BIDEN. Why don't you proceed in any way that is most com-
fortable for you.
Mr. SclnE:ININGi . Thank you, sir. Mr. Chairman, I am very pleased
to have been invited to appear before the subcommittee this morning
to express my personal views on a bill with which I have had some
familiarity, having testified before the House and having been in-
volved in some cases involving national security. I have prepared a
statement and, in view of the subcommittee's familiarity with the
issues, I would ask to have this statement submitted as part of the
record.
Senator BIDEN. It will be in its entirety.
Mr. SCHETNINGER. I would just like to address one or two issues
that I have not discussed in my statement and then invite any ques-
tions. It was apparent from listening to the witnesses this morning
that there was great unanimity of opinion on the importance of
legislation in this graymail area.
I share the view that legislation in this area is necessary. My prob-
lem, however, is that I believe that the Senate bill 1482, as well as
the administration bill, go too far. They take an extra step, they
change present law, and in that sense, they perform major surgery
where only minor surgery is needed.
Let me say at the outset that I support the following procedures con-
tained within the Senate bill 1482: Mandatory notice by a defendant
of his intention to use and disclose classified information, manada`ory
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pretrial hearings, interlocutory appellate review, and, of course, the
housekeeping provisions to safeguard classified information once it is
disclosed.
Having said that, I submit that it is unnecessary to go beyond
that and to provide, as do the deletion and substitution provisions of
S. 1482, that relevant and material information may be kept from
a defendant in a criminal case. I think the best way of pointing up
the danger of this kind of provision is to outline the way I contemplate
the bill would work in a normal trial situation. The bill addresses two
situations, one in which the defendant himself already has knowledge
of the classified information. This was the case in the ITT-Chile
cases in which I was one of the counsels of record.
The other situation and. the more common one, I submit, is where
the defendant seeks to gain access, through discovery of classified in-
formation in the hands of the Government. Addressing first what
would occur in the discovery situation, I would, as defense counsel,
make a request to the court under rule 16 to discover all documents
within a given category ; let's say, all communications among various
people that relates to an issue in my defense, such as inducement, or
what have you.
Now, assuming that the information I seek is classified, the Govern-
ment would resist disclosure, but they wouldn't in the first instance
resist it on the ground that it is national security. They have a front
line, and their front line is that it is not relevant material. They would.
resist my request on the basis that my inquiry, on its face, should be
determined by the court to be not relevant and material.
The Government in resisting discovery always urges on the court a
very strict standard of relevance and materiality. They would argue
that my request for all communications will not "advance issues of
guilt or innocence in the trial." I will respond that under rule 16 I am
entitled to any information which helps "prepare me" to defend the
case. Obviously, it is dfficult for me, as defense counsel, to demonstrate
the relevance of information that I have not seen and don't have access
to. In the vast majority of cases where this arises, I will lose; I will
not gain access to this information, not based on any claim by the Gov-
ernment of privilege or classified information, but based simply on
the argument that my request is not sufficiently detailed to demonstrate
that it is relevant and material.
That is the first line of defense that the Government has. Now
assuming that I have made my argument well, and the judge says,
"Mr. Scheininger, it seems to me that you are right, that this in-
formation probably is relevant and material," then the Government
has a second line. Beyond arguing the relevance of the inquiry, they
ask the court to review in camera and ex parte this body of docu-
ments I have requested. The ostensible purpose of the Government's
request to the court to actually look at the documents is because there
are additional details within the documents that advance the Govern-
ment's argument that the documents are not relevant or material.
Now, under the bill, under 1482, I would have no opportunity to
argue with the judge concerning this ex parte. in camera viewing of
the document. Parenthetically, I suggest to the subcommittee, that
a fairer way of proceeding under the bill, at this stage of the dis-
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55
covery process, would be if defense counsel could obtain a generic de-
scription of these additional details that the documents contain so
that counsel can argue at least in a semiadversary proceeding, the
relevance and admissibility of the documents. I submit that sections
3 and 4 of S. 1482 should contain the same generic category provision
provided in section 6 of the bill.
Going back to my hypothetical, let us assume that the court rules
that my showing of materiality and relevancy is so great that I am
entitled to examine these classified documents. At this point, under
this bill, the documents still need not be disclosed. The Government
has an opportunity to appeal the trial court's decision to the court
of appeals. Only if the court of appeals says that the trial judge was
right, that the documents are relevant and material to my case,
would I get access to the information. Even then, the documents
wouldn't be public. I would likely be subjected to a strict protective
order which would preclude me or my client from divulging the in-
formation. The court's ruling would not be a determination that
the information could be admitted at trial, but only a determination
that I could use this information in the preparation of my defense,
subject to later argument at trial as to whether it was admissible.
Now, Mr. Chairman, I submit that all these layers of insulation are
sufficient to protect the Government's interest in the national secu-
rity. I submit that the incremental value to the prosecution, of pre-
cluding the defense access to information that a trial court and court
of appeals has said is relevant material, as authorized in the substi-
tution and deletion provisions of sections 4 and 6(b) (4) of your
bill, is not worth the damage that such provisions would potentially
cause to the adversary process.
I think an argument can be made, and I have tried to make it in my
prepared statement, that it would be unconstitutional to preclude the
defendant access to relevant and material information. I concede that
there can be honest disagreement on that issue, but I urge the commit-
tee to scrutinize these provisions with a view to whether they are neces-
sary to satisfy the Government's interest in this matter.
I would like to address one other aspect of the. bill that is particu-
larly bothersome to me, and that is what I will call the trigger mecha-
nism. Under section 6(b) of'the administration bill, Mr. Chairman,
if the Government desires to have a hearing on the issue of national
security, they are required to demonstrate that "the information rea-
sonably could be expected to cause damage to the national security."
That provision is not contained in Senate bill 1482. Now I think that
the administration's provision is good in one sense and bad in another.-
It is good because the Government should be required to demonstrate
that national security is properly invoked. Indeed, even with indi-
vidual privileges such as the marital privilege and the attorney client
privilege, the party seeking to invoke the privilege has the burden to
demonstrate that there is, indeed, an attorney client relationship; to
show that others were not privy to the conversation between an attor-
ney and his client ; to show that the communication was about legal
matters as opposed to business matters, and so forth. So, even in the
case of individual privileges, the privilege must be properly invoked.
I think to the extent that the Government is required by section 6 (b)
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56
of their bill, to prove that national security is properly invoked, it is
a proper requirement to place on them.
However, the provision in the administration bill is bad in the sense
that it doesn't open the inquiry to the adversary process. More impor-
tantly, it is bad because it allows the prosecution to confuse and inter-
mingle the, issue of proper classification, on the one hand, with the
issue of relevance-with whether or not the information should be
disclosed in the particular proceeding.
The House bill introduced by Congressman Murphy resolves this
difficulty in sections 102 and 103 by separating issues of classification
from issues of relevance. With all due respect, Mr. Chairman, I sug-
gest that Senate bill 1482 has adopted only the worst aspect of section
6 (b) of the administration bill, in that section 6 (a) of your bill allows
the Government to submit an explanation for why the information is
classified, thus permitting the Government the opportunity to comingle
issues of relevance with issues of classification, yet it does not require
that the court make a finding that the classification is properly
invoked.
I think that is a difficulty with this.bill, and I commend to the sub-
committee the resolution of the problem that is contained in Congress-
man Murphy's bill.
Aside from the issues I addressed in my- prepared statement, those
are the major aspects of this legislation which most trouble me. I
say in conclusion that the diligent and fair-minded efforts of this
committee and others to work out the graymail problem is appre-
ciated by everyone in the defense bar with whom I have discussed
the matter. However, the concern is that the Congress has gone one
step too far by permitting a judge to restrict access to even relevant
and material information by allowing deletions and substitutions.
As I said, the remaining provisions of the bill go far enough to pro-
tect national security.
Senator BIDEN. Thank you very much. Both the bills authorize the
imposition of sanctions short of dismissal of the whole indictment if
the Government refuses to disclose relevant and admissible classi-
fied information. What is your opinion about these provisions, both
the House and Senate bills?
Mr. SCHEININGER. I support the hierarchy of sanctions that the bills
impose, Mr. Chairman. I think it is entirely fair to the defense that
the court be authorized, instead of dismissing an indictment outright,
to find against the Government on a particular count, or to preclude a
witness; sanctions similar to those contained in the Jencks Act. I am
not troubled by that.
Senator BIDEN. In your written statement, you suggest that in the
ITT-Chile case, the district court had ruled the disputed information
to be relevant and admissible and the Government sought mandamus
to reverse the ruling. The Government, on the other hand, suggested
that it was the district court's refusal to make such ruling before trial
that was the subject of the mandamus petition. Could you clarify this
discrepancy for us?
Mr. SCHEININGER. Well, I am not familiar with where the Govern-
ment makes the claim that the judge did not rule pretrial on the
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relevancy of information we sought to introduce. I think that is what
happened in the ITT
Senator BIDEN. Apparently Heymann said this in the House hear-
ings.
Mr. SOHEININGER. I don't recall that, but perhaps I can explain
what my recollection of that matter was. The Government was dis-
tressed with Judge Aubrey Robinson's decision not to. grant them, in
haec verba, a broad protective order. The court of appeals later said
the court's protective order showed proper sensitivity to, national se-
curity. However, I submit that the real reason why the Justice De-
partment went to the court of appeals was not the protective order
issue, but was because they didn't like the judge's ruling pretrial on
admissibility of evidence.
The ITT-Chile case was one in which the defendant was in the pos-
session of national security information, which we honestly, and in
good faith, and as officers of the court, believed was relevant to our
defense. The Government asked that we proffer whether we were in-
tending to introduce it, and the way we were going to introduce it,
in advance 'of trial. We agreed to do that.
The Government then said : Your Honor, the proffered informa-
tion is not relevant to a legally cognizably defense because entrap-
ment and or inducement, which were our defenses as it pertained to
that information, are not proper in these circumstances.
Judge Robinson ruled against them. He ruled that we could use the
classified information. The Government used the protective order is-
sue as a vehicle to seek appellate review on the evidentiary. issue. They
sought a petition for mandamus, and I know, Senator Biden, that you,
as a former defense counsel yourself, know that mandamus is dis-
favored, that the court of appeals will not rule interlocutorily on is-
sues of evidence. They refused to do so in this case. So, the judge's
pretrial ruling on evidence was the issue. .
Just as a final concluding remark, if the Congress passes a bill such
as 1482, which will allow the court to have an interlocutory appellate
review, the Government will not be in the appellate bind they were in,
in the ITT case. They would have obtained a court of appeals ruling
as to whether Judge Robinson was right or wrong in saying that the
evidence could come in.
Senator BIDEN. I see. Well that helps the record here for our pur-
poses. I don't have any further questions for you. I do appreciate
your time and interest and the expertise you bring to bear on this mat-
ter. Obviously you have been involved in one of the more celebrated
cases in this area and have had first-hand experience with the prob-
lems from a different prospective but nonetheless, different than the
Justice Department. That is very helpful for us in our deliberations
Thank you very much for your time.
Mr. SCHEININGER. Thank you, Senator.
[The prepared statement of Mr. Scheininger follows:]
Mr. Chairman, I am honored by the invitation to address you on the so-
called "graymail" legislation now pending before this subcommittee. I speak
as a member of the bar who has participated in the defense of criminal cases
involving national security.
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In the last 2 years, hearings before various committees of both Houses of
Congress have established the need for new legislation in this area. Two aspects
of the "graymail" problem have been identified : cases in which the Justice
Department has been forced to retreat from a decision to prosecute because of
exaggerated defense threats to reveal State secrets, and cases in which our
national security agencies have refused to cooperate with the Justice Depart-
ment in an investigation because of their fear that state secrets extraneous to
issues of guilt or innocence will be disclosed. The "graymail" phenomenon was
aggravated by the problem of overclassification and the absence of interagency
procedures to handle classified information.
While the problems of overclassification and interagency procedures have in
recent years been the subject of remedial action by the agencies themselves
and by executive order, there remain areas of legitimate concern. There is a
clear need to enact uniform and predictable courtroom procedures to safeguard
classified information in criminal trials. For this reason, I support legislation
requiring mandatory notice by a defendant of his intention to disclose classified
information, mandatory pretrial hearings, interlocutory appellate review, and
fixed procedures to safeguard classified material once it is disclosed. Enactment
of these measures would assure that extraneous classified information was not
disclosed in criminal trials.
The problem with the Justice Department bill (H.R. 4745), as well as that
now pending before this subcommittee, is that both go beyond remedying past
abuses and seek to enact a broad State secrets law that is unnecessary and dan-
gerous. These bills would change the existing state of the law by permitting
the court to authorize the prosecution to withhold or provide only summaries
of classified information that is admittedly relevant and material to the defense.
Moreover, these bills seek to establish this qualified privilege within the context
of a procedural structure which focuses inordinate judicial concern on the
issue of national security. For example, under S. 1482, the prosecution is not
only entitled to argue for nondisclosure in ex parte sessions with the judge, but
is, in addition, able to urge nondisclosure on grounds extraneous to the issues
of the trial, viz. potential damage to foreign relations.. The effect of this proposed
legislation in the courtroom will be to severely restrict a defendant's access to
information relevant and material to his defense.
There is a distinct danger to such broadly conceived legislation. As Michael
Tigar said in testimony on these bills before the House, the experience of other
nations is that creating a special body of law for offenses involving secrets of
state tends to foster repression. Moreover, these bills retreat from the principal
enunicated by the Supreme Court in United States v. Reynolds, 345 U.S. 1
(1953) : "(It) is unconscionable to allow government to undertake prosecution
and then invoke its governmental privileges to deprive the accused of anything
which might he material to his defense."
See Jencks v. United States, 353 U.S. 657, 670-71 (1957) ; United States v.
A.ndolschek, 142 F.2d 503, 506 (2nd Cir. 1944). By authorizing the withholding of
classified information through deletions or substitutions in lieu of actual mate-
rial, these hills tend to deprive the defense of its constitutional right to confronta-
tion and compulsory process. See P. Westen, Confrontation and Compulsory
Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567
(1978).
The proper balance between preserving the integrity of our adversary system
and safeguarding state secrets can be struck without enacting these broad
changes in the rules of evidence and criminal procedure. The difficulty with
present procedures is not that they are inadequate, but that they are discre-
tionary with each judge in each case. In the "ITT-Chile" cases in which I was
one of the counsel of record, the judge used existing procedures to: (1) issue a
comprehensive protective order under Fed. R. Crim. P. 16(d) (2), limiting access
and disclosure of classified information; (2) order that notice be given by the
defense of its intention to use classified information ; (3) require the defense
to demonstrate relevance and materiality of that information at an in camera
pretrial conference held pursuant to Fed. R. Crim. P. 17.1. In this case, the Jus-
tice Department disagreed with the court's eventual decision to permit the
classified information to be used and sought review by way of a petition for writ
of mandamus. See Fed. R. App. P. 21.
In denying the petition, the U.S. court of appeals held that the trial judge
had "shown a proper sensitivity to the requirements of national security." In
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Re United States, U.S. App. D.C. No. 78-2158 (Jan. 26, 1979). By enacting proce-
(lures to make mandatory the discretionary procedures available under existing
law, as exemplified in the ITT case, and by providing for an interlocutory appeal,
to review decisions adverse to the government, the Congress will impose uni-
formity and predictability on the system, while assuring that state secrets
extraneous to issues of guilt or innocence are not disclosed. No broader legislation
is justified.
While reasonable men and women may, and do, disagree on the constitution-
ality of the various provisions of these bills, few will disagree that an overriding
concern for fairness requires that any new legislation in this area should be
drawn as narrowly as possible to take into account those concerns of the State
which have been shown to require remedial action. It is from this perspective
that the subcommittee should examine the additional provisions of the bills dis-
cussed below.
1. PROTECTIVE ORDERS INITIATED BY THE PROSECUTION
Sections 3 and 4 of S. 1482 authorize the prosecution at any time to obtain
a protective order as to any classified information it does not wish disclosed.
As a practical matter, these provisions allow the prosecution to submit pre-
trial and ex parte to the trial judge discovery material to which a defendant
would ordinarily be entitled, either because it is intended for use by the Govern-
ment as evidence in chief, or because it is material to the preparation of the
defense. Fed. B. Crim. P. 16(a) (1) (C). These provisions empower a judge
to alter, by substitution or summary or even deletion, admittedly relevant and
material information without affording the defense notice or an opportunity
to. be heard. Sections 3 and 4 swallow all of the protections provided to the
defense elsewhere in the bill. For example, under section 6(b) and (c) of the
bill, deletions, substitutions and summaries are permitted only after an adversary
hearing, prior to which the defense is given sufficient information to enable
it to participate in an intelligent manner. There is no legitimate reason why
these same protections should not be afforded under sections 3 and 4.
The Justice Department has argued in favor of provisions similar to sections
3 and 4 (see section 4(b) of H.R. 4745) on the ground that they provide the
Court with no different authority than is already provided in Fed. R. Crim. P.
16(d) (1). In this context, it should be noted that although when originally
promulgated, it was foreseen that rule 16(d) (1) might be used in national
security cases, see Advisory Committee's note, 34 F.R.D. 411, 425 (1964) ;
Dennis v. United States, 384 U.S. 855, 875 (1966), there is not a single reported
case where it has been so used. Thus, if sections 3 and 4 merely restate rule
16(d) (1), they would be at worst superfluous. But a detailed comparison between
these sections and existing Fed. R. Crim. P. 16(d) (2) reveals that there are
indeed, significant differences. First, rule 16(d) (1). requires that any submission
made for consideration by the judge alone, must be made in writing. Sections
3 and 4 contain no such requirement. Second, rule 16(d) (1) provides that
whenever the judge grants relief restricting discovery following an ex parte
showing, all the written submissions shall be preserved for appeal. Sections 3
and 4, by contrast, mandate such preservation only if relief is granted and the
defendant objects. Thus, under the provisions of sections 3 and 4, a prosecutor
would be free to make any sort of oral representation to a judge, and there
would be no record available for appellate review.
Moreover, even where some written materials were submitted, they would not be
preserved for review unless the defendant objected to the court's decision. Since,
under this section, the defendant is not even entitled to notice that the procedure
has taken place, one can only wonder how a defendant ever will be sufficiently
informed to make an objection. Thus, sections 3 and 4, if enacted, would signifi-
cantly dilute the protections available to defendants under present Fed. R. Crim.
P. 16 (d) (1).
S. 1482 omits any standards by which the trial judge shall decide on what basis
to withhold disclosure of classified information. While I understand that the
intent of this omission is to permit "prevailing standards" to govern, I believe
that within the context of the bill, the omission will be viewed by judges as an
invitation to withhold information and to restrict cross-examination. Thus, sec-
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tion 6(b) (4) (A) should be revised to provide that no classified information may
be withheld if it is relevant and material to the offense, to the preparation of the
defense, or to the credibility, bias or interest of any witness.
While the standard for withholding is omitted, the bill does provide a standard
for determining whether alternatives to full disclosure may be used. Section
6(b) (4) (B). However, that standard, "that the defendant's right to a fair trial
will not be prejudiced," is unfairly restrictive. The section should be revised to
provide that no deletion, substitution or summarization can interfere with the
confrontation and. cross-examination rights of the defendant. The legislative
history should clearly establish that it is not the intent of this section to place the
defendant in a substantially different posture than if the actual classified infor-
mation had been disclosed.
III. RECIPROCITY
Reciprocity of two types is provided by S. 1482. Whenever a defendant is re-
quired to disclose particular aspects of his defense under section 6, he is entitled
to a bill of particulars detailing portions of the indictment related to the classified
information at issue in the hearing. Under section 6(c), if the defendant's
right to use classified information is sustained by the trial court, the defendant
is entitled to be advised of the information, but not the witnesses, which the
Government intends to use to rebut the particular classified information.
The bill of particulars provision has been criticized on the ground that where
the defense discloses only documentary evidence, that evidence would ordinarily
have been disclosed anyway by the defendant under the reciprocal discovery
obligations of Fed. R. Crim. P. 16 (b), thus there is no need to afford the defense
a bill of particulars for purposes of reciprocity. The fallacy in this argument is
the assumption that only documentary evidence will be disclosed. As a practical
matter, in order to demonstrate at a section 5 hearing that classified information
needs to be disclosed, the defense will be required to detail its proposed use of the
documents, and to reveal and justify its legal theory in order to establish the
relationship between the classified documents and the defense case. Moreover,
this disclosure will be made at a time when the defendant has not yet heard the
case against him, and even the judge will be forced to weigh defense disclosure
requests in a factual vacuum. Thus, the bill of particulars provision not only
serves to compensate the defense for the complete disclosure required of it, but
serves, too, to fix a factual context for the court's ruling.
In my view, both types of reciprocal discovery provided for in this bill are
constitutionally mandated. As the Supreme Court stated in Wardius V. Oregon,
412 U.S. 470, 476 (1973) :
"It is fundamentally unfair to require a defendant to divulge the details of his
own case while at the same time subjecting him to the hazard of surprise
concerning refutation of the very pieces of evidence which he disclosed to the
State."
IV. SECURITY CLASSIFICATION
Under section 6(a) of S. 1482, the prosecution is entitled, at its option, to
submit to the court "the classified information along with an explanation of the
basis for the classification." The bill says this submission is to be made in camera.
In context, this presumably means ex parte. In my view, authorizing the prosecu-
tion to explain "the basis for the classification" is both unnecessary and preju-
dicial to the defendant.
It is unnecessary because the trial judge does not need to know the basis for
the security classification simply to determine whether or not to hold a hearing.
It is sufficient that the Attorney General or his designated deputy or assistant
has certified the information as classified.
The provision is prejudicial because it permits the .prosecution to intermingle
the issue of relevancy, which goes to disclosure vel non, with the issue of harm
to national security, which, if appropriate at all, goes only to the form
of disclosure.
The importance of separating the two issues is properly recognized in sections
102 and 103 of H.R. 4736, introduced by Congressman Murphy. These sections
provide that the judge is not to consider the basis for the classification until
after he determines that the material at issue is producible. Only then is the
judge permitted to consider the basis for classification and only to determine the
form that the disclosure shall take. This scheme properly separates the two inde-
pendent decisions which the court must make, and protects against information
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01
relevant only to type and degree of disclosure "spilling over" and coloring the
determination of whether the information should be disclosed at all.
On introducing S. 1482, Senator Biden expressed reservations about section 10,
which would revise the Jencks Act. That reservation is extremely well-founded.
Under the present statute, 18 U.S.C. 3500, once a witness has testified on direct
examination for the prosecution, the only ground upon which a prior statement
by that witness may be withheld from the defense is that the statement "contains
matter which does not relate to the subject matter of the testimony of the wit-
ness," 18 U.S.C. 3500(c). In these circumstances, the court, after an in camera
inspection, orders excision of the irrelevant material and production of the
remainder. The proposed amendment would require the court to order the deletion
of admittedly relevant matter, if it finds that the matter "is consistent with the
witness' testimony."
The provision is both unnecessary and prejudicial to the defense. The act, as
presently codified, already meets all of the objectives which this new bill seeks
to accomplish. It is uniformly applicable in all Federal courts, 18 U.S.C. 3500(a).
It precludes discovery until after a witness has testified, thus preventing prema-
ture and unnecessary disclosure, 18 U.S.C. 3500(a). It requires the excision of
irrelevant matter, 18 U.S.C. 3500(c). It permits the prosecutor the option of
refusing to produce the discoverable statement, and it provides a hierarchy of
sanctions for nondisclosure, which do not necessarily require the termination of
the prosecution, 18 U.S.C. 3500(d). Therefore, additional legislation in this area
in order to deal with national security problems is totally unnecessary.
The proposed amendment would require the deletion of material from a state-
ment, if the trial judge found it to be consistent with the witness' testimony.
Demonstrable inconsistency has never been the test for production of Jencks
material, and for very good reasons. As the Supreme Court stated in Jencks v.
.United States, 353 U.S. 657, 667-68 (1957) :
"Every experienced trial judge and trial lawyer knows the value for impeach-
ing purposes of statements of the witness recording the events before time dulls
treacherous memory. Flat contradiction between the witness' testimony and the
version of the events given in his reports is not the only test of inconsistency.
"The omission from the reports of facts related at the trial, or a contrast in
emphasis upon the same facts, even a different order of treatment, are also
relevant to the cross-examining process of testing the credibility of a witness'
trial testimony.
Requiring the accused first to show conflict between the reports and the testi-
mony is actually to deny the accused evidence relevant and material to his
defense. The occasion for determining a conflict cannot arise until after the
witness has testified, and unless he admits conflict, as in Gordon v. United States
(344 U.S. 414 (1953) ), the accused is helpless to. know or discover conflict with-
out inspecting the reports. A requirement of a showing of conflict would be
clearly incompatible without standards for the administration of criminal justice
in the Federal courts and must therefore be rejected."
Although the Jencks Act was intended to limit application of the doctrine
established by the court in its decision, the ruling that a defendant need not
demonstrate inconsistency prior to obtaining an otherwise producible statement,
has not been altered. See, e.g., Clancy v. United States, 365 U.S. 312, 316 (1961).
In sum, the proposed Jencks Act amendment is an unwarranted intrusion upon
the defendant's right to obtain relevant material, so that he may effectively
confront the witnesses against him, as guaranteed by the Constitution. See, e.g.,
United States V. Mi8ster, 414 F.2d 1293, 1303 (4th Cir. 1969), cert. denied, 397
U.S. 913 (1970).
Senator BIDEN. The next two witnesses I would like to invite to come
forward as a panel, Mr. Earl. Silbert and Mr. William Greenhalgh.
Gentlemen, welcome.
Thank you for being so patient and willing to testify through
your lunch hour. I appreciate it. It might be best if we proceed in
that order. Mr. Silbert first and then Professor, you next, if we could.
Mr. Silbert.
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PANEL REPRESENTING ABA :
STATEMENTS OF EARL J. SILBERT AND PROF. WILLIAM W.
GREENHALGH, GEORGETOWN LAW CENTER
Mr. SILBERT. Good morning, 'Senator. Thank you for the oppor-
tunity to appear here before you. Just a word to explain my role here.
I was requested by the standing Committee on Law and National Se-
curity to serve as a consultant for them on the issue of graymail.
Senator BIDEN. Of the ABA?
Mr. SILBERT. Of the ABA. It is one of the standing committees of
the American Bar Association. I did do that, study the legislation
and the various testimony that had already occurreed in the House,
submitted a report to the Committee on Law and National Security
which thereafter adopted a position, a position that was in fairest re-
spects, inconsistent with a prior position taken by the criminal justice
.section of the ABA which is represented here today by Professor
Greenhalgh.
Professor Greenhalgh and I subsequently got together to see if we
could resolve our differences. We came up with a proposed draft reso-
lution of our. differences that was thereafter submitted to both the
standing Committee on Law and National Security and the Criminal
Justice Section. Both of those sections and or committees approved
the draft resolution that Professor Greenhalgh and I had prepared.
Earlier this week on Monday, 'Senator, that was submitted to the
House of Delegates which accepted the joint resolution on the joint
substitute resolution of the standing Committee on Law and National
Security and the Criminal Justice Section with the one change as I
have previously informed Mr. Gitenstein that with respect to the
subject of interlocutory appeal, by motion on the floor of the house
of delegates, that right was granted to the defendant in the criminal
case as well as to the United States.
I might say that this was done notwithstanding the joint opposition
expressed on the floor of the house of delegates by Professor Green-
halgh and myself, speaking in behalf of our respective committees.
We pointed out to the house that none of the proposed legislation
had such a recommendation in it or provision and it had no precedent
to our knowledge, at least certainly to my knowledge in prior Federal
statutory law and that I wasn't aware, although there may be some,
of any real support for it by a testimony or other recommendations in
either the. House or here. There may have been some but certainly not
strong support. Notwithstanding that it was accepted by a voice vote
after about 5 minutes debate on the floor of the house of delegates
and I would simply, so far as that is concerned, reiterate before here
my feeling that that is an'unwise decision principally because the de-
fendant already has a right of appeal. The only reason for 3731 in
title 18 to begin with is to grant the Government limited rights of
appeal because ordinarily the Government has not such right of
appeal.
The amendment that was proposed and is contained in S. 1482 and
other legislation is simply to include, as part of the provision accord-
ing the Government the right of interlocutory appeal, the right to
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appeal in the situation that we are now discussing, from an adverse
ruling with respect to a judgment made by the trial court on national
security ground.
I should also stress that of course I do not speak here in any official
capacity in behalf of either the American Bar Association or the
standing committee, but solely in my individual capacity. With that
stated, so far as the pending legislation is concerned and I think as
Mr. Scheininger correctly pointed out, there seems to be widespread
agreement, one, for the need of legislation, two, that in such legisla-
tion there should be a mandatory pretrial proceeding provided for
at which the questions with respect to disclosure of classified informa-
tion can be resolved by the trial judge, and third that if there is.a de-
cision adverse to the Government, that it should have a right to appeal
that ruling both prior to or even during trial if that is necessary.
In addition all the proposed legislation and now the ABA by its
policy, agrees that the procedure should be initiated by ex parte sub-
missions by the Government of classified information. It can also be
triggered by the defendant if the defendant chooses to disclose classi-
fied national security information as part of his defense, or seeks from
the Government as part of discovery material that is classified.
It is also agreed that the resolution of such submissions can, on
Government request, be held by the court in camera and that it can
make its review based on ex parte submissions. Now, as far as I can
tell, the bill seemed to be fairly consistent in most of the support but
not all. It is consistent with the ABA's recommendation that the judge
should have the discretion to require all classified information to be
disclosed over the objection of the Government. However, if he deter-
mines that the defendant can receive all the information that is rel-
evant and material either to the elements of the offense with which the
defendant is charged, the defense that the defendant chooses to raise,
or to the bias, credibility or interest of the witnesses, if that can be sat-
isfied by means other than full disclosure of the documents in toto,
then changes can be made. The changes may consist of deletions of
material. They may consist of summaries of the material. They may
consist of simply a stipulated or a stipulation of fact that the parties
could agree to.
But, for example, based on what I just heard Mr. Scheininger testify
to, I think his underlying objection to the legislation is wrong in the
sense that he says the legislation would enable the Government or the
courts to deny the defendant information that is admittedly relevant
and material. That certainly was not my recommendation to the stand-
ing committee. It is not, the position that was taken by the ABA as I
read it's resolution the joint proposal that Professor Greenhalgh
and I drafted- Our theory is that if the document has material that is
relevant and material and that cannot be accommodated by substitutes,
by deletions or excisions, by stipulations, then the defendant has to
get it all.
If the Government objects to the defendant being able to disclose
or being able to itself, or of having to turn over through discovery,
then the Government has to make some choices. It may for example
choose not to turn it over and sacrifice a witness to it and subject itself
to the "sanctions that are provided for by the legislation. I think we
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have, at least the ABA recommendation, and certainly our position.
and my understanding of the position in the legislation is that a de-
fendant is not to be deprived of specific facts that a court deems to be
both relevant and material and if he isn't given that information, he
is then not put in the same position that he would have been if they
were full disclosure.
I want to turn briefly to the Jencks Act. As I stated in my report as
a consultant, a copy of which has been submitted to the committee
and which I would ask be made part of the record.
Senator BmEN. It will be.
Mr. SILBERT. Thank you. In going through the least written state-
ments of a number of the witnesses, I have felt that the issue had been
exaggerated and overblown. I do not agree with the proposed draft
of the amendment contained in S. 1482 or the administration bill; that
is, that in addition to the usual test for determining relevancy, the
judge may delete material that is consistent with the testimony of
the witness. I do not understand that test as it would apply to the
Jencks Act. If it is consistent to me it means he, the witness, he or she
has already testified to it and it has already come out, and I for the
life of me, although I have talked with the people that have proposed
it, have still not been able to come to an understanding of how that
term consistency would be applied.
On the other hand I do not share the view that the world is coming
to an end if the Jencks Act is modified, or amended. I don't think that
any legislation is written stone, that if the need arises, it cannot be
amended, or modified to meet that need. The ABA adopted a com-
promise, simply saying that it opposed the language, the specific
language in S. 1482 and in the administration bill, Senator, and then
rather than resolve the issue, what it did say that if there is going to be
an amendment, let's make sure that the amendment properly accom-
modates the interest of the Government against unwarranted disclo-
sures of national security information and the rights of a defendant to
a fair trial.
Senator BIDEN. Do you have any suggested language?
Mr. SILBERT. I do and I included that in my report. I think the test
ought to be not whether or not-the present law says the defendant
gets -everything that is relevant related to the subject matter of the
direct testimony. I could envision situations in which what comes with-
in the general scope area of his testimony might include classified
information, that the Government would not want to disclose. I
would then say to the judge, he has the authority to review it and ex-
cise that material if he finds, but only if he finds, that it is immaterial,
immaterial to the credibility, the interests, the bias, or prior conduct
of the witness.
That I think is a test to me that makes a lot more sense, and, as I
said. I do not understand the application of consistency, the con-
sistency test that has been proposed by the administration. But, if
you can show and the judge makes a finding which would always be
subject to review on appeal, that that information, or whatever it is
that is contained in the prior statement, is immaterial to bias, cred-
ibility, interest, or prior conduct of the witness, I simply do not see
how the defendant can be harmed. I must take issue with those who
say that the Jencks Act-
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65
Senator BIDEN. Isn't the issue there though really questioning
whether or not the judge should have the right to make that decision?
Mr. SILBERT. All right, now that is the question. I was just going
to say that I do not agree with those that claim that what we are
talking about is a due process right. The Jencks Act itself was a
modification, was a response to the prior Supreme Court decision.
I have never known it to be stated that it is based on constitutional
principles. If it were its equivalent would be necessary in all the States
of the Union and there are many States that do not have the equiv-
alent of Jencks Act statements.
I do agree with the Jencks Act itself. I mean that to me is basically
a fair statute. The orie area, it is just the one that you pointed out
Senator, on which reasonable people may have a differing approach
and that is who should make the assessment on materiality, the
defendant or the court.
That is a judgment decision that has to be made. It is not as though
the proposal to have the judge make it is unique. That it is something
that has not occurred prior in our jurisprudence. There are many
situations that call for judgments to be made by the judge, by the
court, without the benefit, argument either for example by the defense,
or by the prosecution. Indeed in this very legislation
Senator BIDEN. Are there many though where the judgment is made
by the judge, the basis of that judgment, not being known to the
defendant.
Mr. SILBERT. The Jencks Act itself, Your Honor-excuse me,
Senator.
Senator BIDEN. Thank you. Thank you for the compliment.
Mr. SILBERT. The Jencks Act itself, although there the issue is not
materiality, but it is whether or not the subject of the statement is
related. Now it was in every single case in which Jencks Act material,
prior statements of a witness are to be turned over to the defense.
If the Government wishes to challenge the fact, or assert the fact that
part of the prior statement is not related to the scope of the direct
examination, it makes an ex parte submission of that material, which
is right within the provisions of the statute to the court and the court
makes an ex parts determination with no input or opportunity from
input from the defendant.
I say, that occcurs in every Jencks Act situation so that I don't think
extending the authority of the court in the area of classified informa-
tion to make the further judgment of materiality is, as I say, something
that would transform a statute from being constitutional to uncon-
titutional.
I certainly recognize the fact that the argument remains that those
kind of ex parte determinations should be limited in their number to
those that are deemed, you know, essential. That they should not be
expanded because they are inconsistent with the normal flow and
processes of the adversary system that we have. As I say, to me it is
not a question of constitutional law. It is a question of policy or judg-
ment but I do think that in this sensitive area, if the test is to be that
the disclosure would unduly jeopardize national security interest, but
that still have to be made unless the court is prepared to make a finding
that it is immaterial to bias, interest, credibility, which are fairly
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broad tests of the defendant, I think that makes a reasonable accom-
modation.
I guess there is one other issue that I should address because there
are some differences in the proposed legislation and that has to do with
what are called reciprocity and bill of particulars. So the Murphy bill
provides for the bill of particulars. Now the ABA has come out
stating that that is unnecessary and. I fully agree with that. That was
my initial position. To me the question is one of discovery, Senator.
I do not see it at all as related to the question of a bill of particulars
which .is designed to inform the defendant of the charge that has been
placed against him more so than the indictment so that he can prepare
his defense and make a subsequent claim of double jeopardy.
So that I don't think asking wth respect to disclosure of national
security information, the issuance of a bill of particulars-they just
don't address the problem. The problem is properly addressed in dis-
covery. H.R. 4736 provides that if any information is denied a defend-
ant, then the Government has to, in rebuttal, disclose all of its
witnesses. I think that the Government should be put under a burden
of reciprocity as your bill provides.
I do not agree however that these should necessarily have to be a dis-
closure of witnesses. In my view what should be done, and again the
ABA adopted this position, is that the reciprocity should be equal if,
for example, the defendant is required to disclose by the judge the
identity of his witnesses who will testify to national security infor-
mation.
Then I think fairness would require that the Government in turn
be required to disclose its witnesses. If, however, all that the defend-
ant is required to do is disclose the information that he or she would
seek to be allowed to come out of trial, then I think to make the re-
ciprocity equal or properly balanced, the Government should only
have the burden in rebuttal of producing the information that it will
produce to counter or to rebut that information.
I think the provision in S. 1482 more properly addresses that ques-
tion. The administration bill I think is deficient and doesn't make any
provision for it at all. I would include a reciprocity provision and
I would simply make sure that language along the line that
I think the ABA has now adopted and that Professor Greenhalgh
and I recommended to them, that there be whenever the defendant
be required to produce under this legislation, information as
discovery that he or she is not otherwise required to produce by the
ordinary rules of criminal procedure, then there should be a cor-
responding obligation on the part of the Government to produce like
information on which it will rely in rebuttal.
That is if it is just information, information. If it is identity of
witnesses, identity of witnesses. Ordinarily I don't think it will hap-
pen that often because I think primarily we are going to be talking
about documents and documents the defense already has an obliga-
tion to disclose as part of its discovery. It has a right to obtain from
the Government all documents that the Government intends to use in
its case in trial and then it has the corresponding obligation to pro-
duce all documents it intends to introduce in behalf of the defense.
That is under existing law in the Federal Rules of Criminal Proce-
dure.
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So while we are talking about a document, there is no additional
burden placed on the defendant by this procedure. But, if there is an
additional burden, then I think the Government should have a cor-
responding obligation to provide like information.
Senator, I think that completes what I would like to present ini-
tially to the court. After, or before, Professor Greenhalgh speaks 1
would certainly be pleased to try and answer whatever questions you
and anyone else might have.
Senator BIDEN. Well, I think maybe it would be best to hear Profes-
sor Greenhalgh and I should point out that for the first 8 months I
was in the U.S. Senate, I would instead of addressing the presiding
officer on the Senate floor as Mr. President, I would always stand and
say may it please the court. It has taken me 7 years and I can fully
understand your referring to me as Your Honor. It took me 7 years
to get over it. Professor?
Professor GREENHALOH. Senator, I would like to zero in on this
piece of legislation, especially. since it had your name on it, S. 1482,
with regard to section 10 and that is the proposed amendments to the
Jencks Act. I have submitted a rather short but succinct statement
with regard to my testimony as an individual law professor.
. Mr. Silbert has pointed out something that happened on the way to
Chicago earlier this week which resolved in agreement between the
two groujs as to the Committee of Law and National Security and
the Criminal Justice Section of the ABA which happily was re-
solved in that regard.
Unlike my distinguished colleague, I have very strong feelings
about the Jencks Act. Probably one of the reasons, Senator, was
when I was in the Internal Security Division of the Department of
Justice one of my cases was Clinton E. Jencks and I have fond mem-
ories of one informant by the name of Harvey Matuso who went sour
and as a result caused the Supreme Court in no unmitigated fashion
to reverse the Jencks Case out of the fifth circuit back in 1957.
Be that as it may, the importance in a criminal trial with regards
to the Jencks Act especially in a national security case as I envision
it-and I have taught Federal trial,. criminal trial advocacy for 17
years-is the Jencks Act is the only mandatory trial discovery per-
mitted a defendant absent the sixth amendment of the Constitution
of the United States. Everything else we have been talking about this
morning, up front with regard to pretrial. conferences and discus-
sions of admissibility and material and relevant, only goes to pre-
trial preparation and the only way you are going to reverse a Fed-
eral judge on, that is to demonstrate that a marvelous amorphous
standard known as abuse of discretion. It rarely happens unless
the abuse is so violently opposed, for instance, in fair play and a
public court will review it as such. Not so with title 18 U.S.C. 3500.
The only test is relevancy once that witness has testified.
It is the only form of mandatory trial discovery absent your right
to cross-examination of the confrontation clause as I hope to develop
some aspect of effective assistance to counsel in being permitted to
confront one's accuser.
Second. it is uniformly applicable in all 94 districts, U.S. district
courts. We are not dealing here with the idiosyncrasies of a Federal
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judge as to excisions with regard to classified information or a word
where I am really concerned, Senator. In your bill is the first time
and the only time in, all three pieces of legislation is mentioned-is
the word summaries. What is a summary in section 10 of your bill V
That is the only place, the Department's bill doesn't use the word
summaries. It is certainly nonexistent as we know in Congressman
Murphy's bill.
But, for some unknown reason, it is in your bill and I suggest to you
and I will get to that more pertinently in just a moment.
The Government controls its prosecution if they are concerned
about production, a witness statement's under 3500, they certainly
can order the number of witnesses. Who is going to testify and who is
going to say what? If they don't want to, once that witness has testified,
sanctions are provided for anonymous closure, and they are in descend-
ing order of priority ultimate to the dismissal of the case.
I think it is important also that we understand how the Jencks Act
operates today. There are four major prerequisites for its operation.
What are they? Material must be in possession of the Government.
There must be a defense request. It must be a statement as defined in
either El, E2, or E3 and it must relate to the direct testimony of the
witness on direct examination by the Government. Now, it is important
I think to get to your major question which concerns me as that is the
so-called ability of the learned Federal trial judge dealing with his
supervisory power in handling Jencks Act disclosures as to where
he performs his role in this type of proceeding.
Now the Supreme Court of the United States in two landmark
decisions, titled Campbell One and Campbell Two in its interpretation
of 3500 says the'court has a role to play with regard to the ascertain-
ment of fairness concerning certain procedures as to the production of
.these statements. I think it is important that Campbell One and
Campbell Two be read into context of what would happen in a national
security case because of excision on the part of the Government and
the court being forced to do this if the Government requests it, or
through the use of a thing called a summary.
I am not sure-what I am trying to tell you Senator-I am not sure
how Campbell One and Campbell Two are going to come out if this
legislation goes through as written and I think those are important
cases with regard to the mechanics of developing a Campbell-type
hearing in national security, national security cases.
Getting to the word summaries. You realize of course the Supreme
Court of the United States has already ruled that summaries are not
producible. Are not producible under the Jencks Act in Palermo v.
United States. Now'if the Department has put that language or sug-
gested that to you in your bill, I sugest that we ought to, all of us,
reread Palermo once again, because I don't think that is what you
intend. At least I sincerely don't think that is what the intention
should be.
Getting to the constitutional issue which my distinguished colleague
takes issue of, and Mr. Heymann alluded to it this morning.You know,
Jencks isn't the constitutional issue. As decided, no it wasn't, but
what has happened to the status of the law since 1975 especially in
two major areas concerning two clauses in the sixth amendment. One
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69
is the right to confront one's accusers as well as the assistance of
counsel clause. I don't know of anything more important in the de-
fense of a criminal trial than the ability of counsel to be able to have
tools at his disposal for the purpose of rendering effective assistance
to counsel and the right of confrontation that is impeachment.
If, for example, counsel is proscribed from his ability to use docu-
ments after the witness has testified in direct examination because
of excision, it is not a violation because of disablement to rendering
assistance of counsel absent the confrontation clause.
Now, I have put in four cases albeit certainly not on point. The
Supreme Court of the United States has decided since 1957 dealing
with three State statutes where it was per se rendition of interfering
with the effective assistance of counsel because of State action that
was taken against counsel in order to run his own particular case,
Ferguson, Brooks, Herring, and then, of course, the infamous judge
who told the lawyer you can't talk to your client overnight in order
to prepare the witness as such in Geders which was thrown out. As I
recall the Chief Justice
Senator BiDEN. You are extending that principle to-
Professor GREENHALOH. Confrontation. The ability to be able to
use documentary evidence which will be forbidden because of the
power of a Federal judge to excise under the present legislation.
Senator BIDEN. And that is because,, again, to make sure I under-
stand your argument, that the sixth amendment as-I will use my
word-broadened
Professor GREENHALOH. True.
Senator BIDEN. In your opinion, it would encompass what heretofore
was not contained in a standing interpretation of the confrontation
provision of the sixth amendment.
Professor GREENHALOR. Right. I think the law has been most help-
ful, albeit' Mr. Silbert, who has been a prosecutor, now is about to enter
into what we call the real world in the dealing with the Department
of Justice. We will understand more as time goes on. I am saying in
my judgment and my submission as an argument-
Senator BmEN. I understand that-
Professor GREENHALGH. I think it is a valid argument and of course
we will not know.
Senator BIDEN. I think it is a persuasive argument. I just wanted
to make sure I understood it.
Professor GREENHALOa. Sure. Now, along with that the leading case
which has been conspicuous by its absence from departmental memo-
randum and testimony up until now. It is a case which has been on the
books for almost 50 years, and that is Alford v. United States dealing
with the Federal judge sustaining objection by defense counsel, ask-
ing a witness in exploratory fashion where he lived or resided.
Now the interesting thing is, guess where that particular witness
resided. He was incarcerated in jail pending certain proceedings, and
the purpose for that exploratory question was to make a determina-
tion which the Supreme Court in 1931 thought was most important
to test that witness's bias and prejudice with regard to why he may
be testifying against this particular defendant.
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The Alford case in the Federal court since 1931 became the law
of the land under the new process clause in 1968 in the case called
Smith v. Illinois. Senator, it has been given new life as late as 1974
in a very famous confrontation case which has some -similar over-
tones because it dealt with legislation in Davis v. Alaska.
You may recall in Davis it was a question again of trying to ask
a juvenile witness about his prior criminal record, which was pro-
hibited by Alaska State law and Chief Justice Burger in 1974 said
societal interest with regard to protection of juveniles must give way
to the right of confrontation in the sixth amendment context.
It is true the minute the word is breathed, national security, Fed-
eral judges sit up and take notice, and maybe it can be thought of
some way that the analogy of the societal interest that was sought
to be protected by the Alaska State legislation can be overridden by
the U.S. Congress. I suggest to you, no, because the language in Davis
v. Alaska is very strong with regard to reaffirmation of Alford and
Smith and it is cited through
Senator BTEN. I am not sure that they are applicable, and for-
give me for questioning an eminent professor on the detail of a case
that I-once I got out of law school and stopped practicing law I
stopped reading cases. So that when you got-I was with you until
1969. .When you hit 1974-but let's examine that last point you are
making. Again, if I understand your line of reasoning, in the Davis
case, Burger writing to the majority said that the societal interest
outweighs the right of confrontation but
Professor GREENHALGH. No ; the other way.
Senator BIDEN. The other way around?
Professor GREENHALGH. The other way.
Senator BmEN. That the right of confrontation outweighs the
societal interest. Was the societal interest an interest that was related
to the right of the individual or a general societal right?
Professor GREENHALGH. No; to protect the so-called rights of the
juvenile not to be cross-examined as to a prior juvenile record, and
they said that has to give way because of the right of confrontation
in the proceeding under which it was had.
Senator BmEN. OK.
Professor GREENHALGH. I'm sorry.
Senator BIDEN. No, I misunderstood you. I told you I stopped
reading in 1959. Now I understand. I misunderstood you.
Professor GEEENHALGa. I probably overstepped myself on doing
something but I really didn't mean to.
Senator BrDEN. That is easy to do when you are referring to
Justice Burger.
Professor GREENHALGH. In any event, let me summarize at least my
personal feeling in this matter. Senator, I am sorry you didn't ask the
Assistant Attorney General, Philip Heymann, the same question that
Congressman Mazzoli asked him on August 7, 1979. The question went
something like this : Mr. Heymann, in national security cases, has
there been a problem with regard to the Jencks Act? Answer : It
has not been a substantial problem in the area. End of answer.
Senator BI-FN. The reason I didn't ask it is that I didn't have
to because I quoted it today when I asked the
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Professor GREENHALGH. The other three.
Senator BIDEN [continuing]. The other three. So I already knew his
answer.
Professor GREENHALOH. OK, good. Sometimes if you know the an-
swer, you want to ask it. It is helpful to do that.
Senator BIDEN. Well, I think we have got it in the record, any-
way, didn't we?
Professor GREENIIALOH. Right. For that reason, I don't think it
is as necessary to the life of this legislation as one would suppose.
Another illustration, Senator, is in looking at the legislation, a sub-
stitute that came out of the Subcommittee on Legislation of the
House Select Committee on Intelligence, which you will see there is
no addition of the same section 10 to that and if you look after their
mark up in their proceedings, there wasn't even a motion made to
include it as such.
I do not think, therefore, that it is essential to this piece of legis-
lation in that regard. Second, as Mr. Silbert suggested, he and I
both worked out this joint substitution with the house of dele-
gates. Now he has got his own language in a personal capacity with
regard to immateriality. I just disagree. I think the test should still
be relevancy, and then also the good faith of an experienced trial
judge, and I talked to several of them, how they would handle this,
and they say, Bill, the most important thing, if you have got re-
sponsible counsel you can get this thing ironed out.
I think if you trust the Federal judiciary and you have got respon-
sible and professional people dealing on both sides, not only the
Justice Department but all of them.
Senator BIDEN. You are asking a lot.
Professor GREENHALOg. Well, I think so, but even in, Mr. Schein-
inger's case, that particular solution can be met now with national
legislation and an amendment to 3731.
Senator BIEN. Isn't really though the reason we even have much
of this, the need for the legislation is because not all counsel is
responsible and not all Federal judges are all that bright. At any
rate, I won't belabor the point but they are two big ifs, and I am
not being facetious when I say that. I really am not.
Professor GREENHALOH. All right.
Senator BIDEN. Because the argument is that, one of the backup
arguments as Justice uses in this matter is that you know, if all
counsel were responsible we wouldn't have a problem, but what our
problem is we have a lot of irresponsible counsel. Now I am not
subscribing to that position, but that is at least implicit in the argu-
ment that Justice is making.
Conversely the argument is that, well, if we had, if all judges
were responsible and knowledgeable in these affairs and fair, then
defense counsel would be less concerned. Notwithstanding, the con-
stitutional argument remains, but the defense counsel would be less
concerned about the ex parte and in camera proceeding because they
would know they had fair and well-informed judges.
Please don't misread what I have just said. I am not suggesting
that all judges are unfair, or even many, or that all. counsel are
incompetent. But, really, there are two of the very practical prob-
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lems we have and if I may, Professor, I am most troubled by the
constitutional arguments raised against the provision which the three
of us have been discussing here that appear in my bill.
That bothers me a great deal. But assume that it was resolved to my
satisfaction, which may be irrelevant for any reason other than
whether or not it is going to stay in the bill, assume it is resolved to
my satisfaction that it is constitutional. Then it seems to me we get
into a different realm of arguments. You asked, or you stated that
as an attempt, I assume, to offer some persuasive evidence, of the lack
of necessity of this provision, that the House doesn't have it in there
and that the Justice Department has indicated that heretofore it has
not been a problem. But, we get into the-speaking of the real world-
the real world whether or not we are going to get a bill. We have fairly
strong assertions from the administration, on the one hand, that ab-
sent this provision, they are not sure they are going to be willing to
support the legislation.
On the other side you heard the testimony of the competent coun-
sel in my opinion, representing the ACLU, that if in fact it remains
in, then the ACLU and possibly the defense bar would not be pre-
pared to support the legislation. So that is really where I am once
I get by the question, assuming I can, once I resolve the constitutional
question, is whether or not on balance it is more important to get it
bill which everyone acknowledges, at least.almost everyone acknowl-
edges is badly needed, in what has turned to be I think, Professor, a
very sour environment.
Things have changed and I think it is unfortunate maybe because
I spent-the little time I did spend practicing law was all on the
wrong side of the track according to most folks in the ABA. I was in
the defense bar, the criminal bar, defense criminal bar, and I see some-
thing occurring and I apologize for this little oration, but I think it
is pertinent to the last point you raised, the mood of the country is
changing. The mood of this Congress is changing and it scares me. We
are now at a point where we have very competent women and men in
this body and the other body who heretofore have been willing to
acknowledge the need to restrict, monitor, and continually and con-
temporaneously oversee the activities of the intelligence communities
and the handling of classified information, its use and misuse, now
saying that national security, the changed times, the overregulation
and overburdensome requirements that you liberals, Biden, you civil
libertarians have put upon the agencies, now call for a radical change
in what we have been doing the last 3 or 4 years. The last 6 years. It
is not just saying we are going to, for example, withdraw, to give you
one example, from the requirement that eight committees be informed.
We a,re going to contest whether or not even one committee should be
informed contemporaneously about covert activity.
We think maybe the Freedom of Information Act has gone so far
that we really should essentially emasculate it. And again, in the name
of national security so that I am just being very blunt with you,
Professor, that my concern is that I think we have a very small window
and I may not be all that good of a lawyer any more, and maybe I
never was, but I am not a half bad politician and I can tell you that
window, that window of opportunity for the first time, codifying the
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safeguards that I think are necessary for the American people and
their security, to secure them against abuse by the intelligence agencies
in the name of classification, is closing and it is closing very rapidly..
If we miss the shot this time, I think it is going to be a long, long time
before we have the opportunity again to bring into line the conduct
and activity of these agencies and administrations, on a basis other
than relying on the good faith and solid judgment of the women or
men who happen to occupy the post.
So that doesn't speak to the substance of your concerns about my
legislation, and I think they are very well founded. As I indicated
when I introduced the legislation-there is no reason why you would
know this-but at the press conference I indicated that I was very
skeptical about inclusion of the alteration of the Jencks Act. I was
very, very skeptical about it, but for purposes of debate and discussion
I was going to introduce it and make it part of the legislation because
it was a major bone of contention with many people.
Having said all of that, my dilemma at this point is the constitu-
tional one and when that is resolved, then it becomes a political deter-
mination in hopefully the best and broadest sense of that term. I don't
mean in an unpartisan sense, but that is how I got to where we are
in this legislation which is sort of an implicit question you have had.
throughout your testimony, and I don't know how in the heck did
the summary creep into the legislation when it hadn't been used
before. Why in section 10 in our act, in my legislation and not in the
House side. At any rate, I have spoken too much and you have been
kind epough to sit through almost all the testimony. I notice you were
here from the outset.
Let me ask you both a question that hopefully will clarify a state-
ment enabling you to help me clarify a statement made earlier by
Phil Heymann. I am even foggier now than I was when he made the
statement. That is when I asked him, I am trying to think of a specific
question, when I asked him about the Jencks Act, his response was,
well, the ABA-I am paraphrasing-the ABA as recently as this
weekend resolved that question and the Justice Department is inclined
to agree with-please staff correct me if I am wrong about this-is
inclined to agree with the compromise they came up with and that
I believe that the question I had asked was, the Justice Department
has argued long and hard for an amendment to the Jencks Act, could
you tell me how Justice envisions the provision of the bill to work in
practice $
As I read section 8 of the ABA substitute resolution, it says the pro-
visions in the pending graymail legislation amending the Jencks Act
be opposed as presently drafted, but that if alternative amendments
are proposed that they appropriately accommodate and balance the
need of the Government to avoid unwarranted disclosures of national
security information and the need to assure that the accused in the
criminal cases bear rights to a fair trial. Some would argue that that
is what we attempted to do in section 10 as it now stands.
Now so that as I understand it, there is no specific wording offered
by the ABA.
Mr. SILBERT. That is correct, Senator, and I suspect that I am the
one that is probably responsible for the confusion at least as came
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out before you earlier today. I didn't hear Mr. Heymann's testifying
to this. But I explained, or tried to explain to him what the resolution
of the ABA was without having available to me the language.
Senator BIDEN. I see.
Mr. SILBERT. But then I went on to tell him-I told him, look, I
-disagree with the language-I personally happen to disagree with the
language that was originally proposed by the administration and in
my own report submitted a proposed substitute. And he asked me
what it was and I told him.
"Senator BIDEN. All right.
Mr. SILBERT. And that is to what he may have been referring.
Senator BIDEN. I suspect that may be it.
Mr. SILBERT. May have mistakenly thought that that is what the
ABA
Senator BIDEN. Yes, he then, not to say corrected himself, but then
went back and said he would like the record to be kept open on that
because he wasn't absolutely sure.
Professor GREENIIALGH. In defense of him, Senator, he had a very
bad week in Chicago because certain other forces within the American
Bar Association ganged up on him on Tuesday with knocking out
or rather reversing of their policy of supporting governmental appeal
of sentences. He flew especially to Chicago to oppose that maneuver
exercised by other sections of the American Bar Association and I
think even more so he has been most busy in the last 2 or 3 days with
other matters.
Senator BIDEN. I was going to say, as they say in the east side of my
city, Wilmington, that boy is in a world of hurt, and he better be able
to show what he has is correct because, if he doesn't, I tell you that
there is going to be one hailstorm that you ain't never seen before up
on this Congress. I just hope he is right.
Mr. SILBERT. Senator, in response to your earlier comments about,
with respect to national security and the changing mood. Actually this
legislation is really designed, as I look at it, to promote the ability
through the Congress enacting it and therefore the executive enforcing
it to curb some excesses by those who work in the area of the so-called
national security by not permitting those who are charged with abusing
that to escape responsibility for their conduct by cloaking themselves
in the mantel of national security and preventing the Government from
doing anything about that.
Senator BIDEN. That is precisely right. That is precisely right and
I think it is important that this legislation, or some version of this
legislation pass so as to establish the precedent this year which states
essentially that we are going to continue to be concerned about intel-
ligence activities and that it is our intention to deal with the abuses
wherever they may lie whether it is in terms of disclosure and/or in
terms of abuse of power.
May I ask you, and I am sorry to keep you so long, but it is so im-
portant. Would you, and I have not read it, Mr. Silbert, would you
quote us or cite for us the recommended language that you, not the
American Bar Association, had suggested. That you have suggested.
I should say.
Mr. SILBERT. Well, in my report, it is at page 17 of what was sub-
mitted that I precisely sent to Mr. Gitenstein and the language as I
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said would flow along the lines of, he has to disclose all information
unless the court finds that it is immaterial to the direct testimony with
respect to credibility, bias, interest or prior conduct of the witness.
Senator BIDEN. Now, how does that differ in substance from what
the Justice Department is supporting?
Mr. SILBERT. Well, the Justice Department's language says the judge
need not disclose it if the information is consistent with the testimony.
I have trouble discussing this simply because I don't understand how
that would apply. To me, that provision makes no sense.
As I said earlier, Senator, if a person testified about x subject, and
then you are going to say that what is in his prior statement is consist-
ent with x and therefore not be disclosed, to me, if, in effect, it is con-
sistent, it has been disclosed. So that I don't understand how that
provision would apply at all.
Senator BIDEN. Professor, does the language suggested by Mr. Sil-
bert in any way speak to your concern, or is it any less offensive than
the Justice Department's language?
Professor GREENHALOH. I can't go along with it because again it is a
j n dici al determination and counsel should make that determination
not the court.
Senator BIDEN. So really the issue as far as you are concerned and if
I understand Mr. Halperin's testimony and the testimony of Mr.
Scheininger, goes to that question. Whether or not counsel should be
there to, in an adversary role, to be able to argue whether or not it
meets the test.
Professor GREENHALGH. Right.
Senator BIDEN. So that any alteration of the language relating to
amending Jencks, if it doesn't speak to that issue, then it really is
deficient and you would object to it. The only way you can speak to that
issue, in the way in which you are suggesting to maintain your position,
is to not amend the Jencks Act.
Professor GREENHALOH. Right.
Senator BIDEN. I mean there is no way as far as you are concerned
that you could conceive of to accommodate your basic concern and
compromise on the Jencks Act.
Professor GREENHALGH. I think if you read and review as well as
staff reread Campbell One and Two, you will possibly gather from
that what the true role of the court is as the Jencks adversary-I mean
not an adversary-the Jencks-type hearing.
Senator BIDEN. Right.
Professor GREENHALOH. I think that is very important in all due
respect to understand that.
Senator BIDEN. No, I don't disagree with that a bit. I just want to
make sure that I have, at least now in this issue, that I understand that
because what I would not like, the impression I would not like left at
the conclusion of this hearing today. is that somehow the basic issue is
amenable to compromise.
That as a practical matter we are either going to go with a workable
alteration of Jencks, but nonetheless an alteration of Jencks or we
are going to stay where we are. Now, moving to your concern, Mr.
Silbert, I don't discount the necessity, assuming we reach across the
first watershed which is that Jencks can't, and/or should be altered in
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some way. Then we get into the discussion of what is the best way, and
what is the best way to accommodate the desire which
Mr. SILBERT. I agree with that. I a~n ee that it seems to be an either
or situation. That is if the objection is that defense counsel has to be
able to see the statement, then the particular language becomes im-
material. Obviously you want the language to be the best.
Senator BIDEN. Right.
Mr. SILBERT. But if that is a fundamental objection, I simply with
all respect to Professor Greenhalgh, disagree with his analysis of the
constitutional law. For example he has made a reference to summaries,
the language inclusion, inclusion of the language here in saying that
already the Supreme Court has held that summaries are unavailable.
I mean, that is correct. That is what Palermo said. That a summary is
not a Jencks statement but you only get under this legislation if you
are going to follow anything to the point of considering, if you con-
clude that this material, that this information or statements are im-
material. But that you never want to put the defendant in the same
position he would be by giving him all portions of the statement or
perhaps a summary of the information except for that those facts
that are immaterial to any use he could have in all fairness, due process
or other requirements. That is the issue and then that ultimately comes
down in my thinking to a judgment, or you called it a policy question,
who is going-is the defendant required not as a matter of constitu-
tional law because I don't think he is, but as a matter of policy, is he
going to be required to assist in that determination.
Senator BIDEN. Professor, one last question for you. I am sorry, I
have so many more that I want-but I could keep, you all here till 5
o'clock but I have to ask one more.
Can you either now or in writing later give this committee an ex-
ample of abuses that might flow from alterations as envisioned in
section 10 of this legislation. What are we looking at. I mean the thing
that I have found so good about all the testimony this morning is that
there have been, we all have gone back to and reverted to-using your
phrase again-a real world examples of how things work. Your point
about the Jencks case in 1957 and really what was in issue and what
happened. It is important to understand it-.it seems to me.
Could you provide for the committee your version of the worst case
in areas that would flow from alteration of the Jencks Act. I under-
stand and I realize I am sort of asking you to argue an alternative
because clearly you have taken the position that it is unconstitutional.
to alter it any way. So that the proposal we are making here is uncon-
stitutional. But, getting beyond that question, without compromising
your point on that, what happens, how does the real world begin to
work with Jencks amended. What are the abuses that would flow from
that if any. Do you understand my question?
Professor GREENHAL(3H. Yes.
Senator BmEN. And if you could think about that a little bit and
maybe provide the committee with-nothing you know particularly
elaborate, I think it would be helpful.
Professor GREENHALOH. I think what it will probably involve is the
typical situation that was confronted the defense counsel in Alford
and that is the ability to begin to commence exploratory cross-exam-
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ination and in that light but not really knowing at that time where
you are going. But to be cut off at that point by a Federal judge is
going to be difficult and this is the thing I found out when I talked
about consistency and it' may very well be troubling Earl because con-
sistency at times will breed inconsistency because of new answers that
will be in a particular statement, to ask questions to explore them,
particularly with you who know, with an object or a goal in mind. I
will try to evolve
Senator BIDEN. That is sufficient. But if you think you would like
to add to that, please feel free to do so.
Professor GREENHALOH. Sure.
]The prepared statements of Mr. Silbert and Professor Greenhalgh
follow:]
In recent years, in a limited but highly visible number of cases, the U.S.
Department 'of justice has been confronted with the problem of disclosure at
either the investigative or trial stages of national security information. The
threat to expose such information by a target of criminal investigation or a
defendant in a criminal trial has been called "graymail." The problem, however,
can arise in situations in which the Government itself finds it necessary or
appropriate to introduce evidence that is classified, national security informa-
tion. As a result of the feared disclosure of national security information, some
investigation and prosecutions have been aborted. This in turn has raised ques-
tions in the minds of some whether the Government was overreacting to poten-
tial disclosures of. national security information with the result that Government
officials, especially in intelligence and law enforcement agencies, were unjustifiably
H.R. 4745, an administration bill introduced by the Chairman of the House
Judiciary Committee, Congressman Rodino ; H.R. 4736, introduced by Congress-
man Murphy and cosponsored by several members of the Permanent Select Com-
mittee on Intelligence, Subcommittee on Legislation ; and S. 1482, introduced by
Senator Biden, chairman of the Rights of Americans Subcommittee of the Senate
Intelligence Committee. Introduction of these bills was preceded by extensive
discussions among members of the Congress, Justice Department, American Civil
Liberties Union, and others. Since introduction of the various bills, statements
have been submitted and testimony received from the Justice Department, per-
sons with experience attempting to cope with the problem of graymail, and other
persons interested in the subject matter. The American Bar Association has not
appeared in an official capacity. The Criminal Justice Section created a three-
person ad hoc committee on the proposed graymail legislation. This three-person
committee prepared a majority report challenging a number of the provisions
of the proposed legislation and a minority report supporting the legislation. Both
members of the majority did testify in their individual capacities, not in behalf
of the American Bar Association. The Criminal Justice Section has adopted the
position of the majority of its ad hoc committee.
The American Bar Association Committee on Law and National Security came
into existence in August 1978. It is a successor committee which combines the
efforts of two previous committees of the ABA. The name of the committee itself
demonstrates that the subject of graymail legislation is properly of great in-
terest and concern to it. It has, accordingly, requested that a study be made of the
legislative proposals and the differences among them and that a report be sub-
mitted which contains the results of and recommendations from the study. This
Is the report.
II. THE BASIC PURPOSES OF THE PROPOSED OBAYMAIL LEGISLATION
Noncontroverafal and support recommended.-The principal problems con-
fronting the Department of Justice In responding to threatened exposure of na-
tional security Information arising from criminal Investigations or trials have
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been two : First, there is no existing mandatory pretrial procedure at which
questions relating to the disclosure of national security information can be
submitted to and resolved by the trial judge. Second, there is no procedure by
which the United States can take an interlocutory appeal from what it considers
to be an adverse decision by the trial judge'.
All three legislative proposals address themselves to and resolve both these
problems : They provide a mandatory pretrial procedure at which the trial judge
is to resolve questions of disclosure of national security information and from ad-
verse decisions. Significantly, there is virtually unanimous agreement by all
those who have testified about the legislation that there should be a mandatory
pretrial procedure at which the problems of graymail can be presented to the
trial judge and resolved, and also the United States should be allowed in appro-
priate circumstances to take an interlocutory appeal.
Thus there is no basic challenge to the underlying purposes of the bill. Neither
proposal constitutes a substantial departure from existing law. For example,
rule 17.1 of the Federal Rules of Criminal Procedure provides for a pretrial con-
ference. It does not, however, require one. The proposed legislation would re-
quire pretrial rulings on graymail problems. The only change, therefore, is to
advance the timing of rulings on certain issues, issues which under present
procedure need not be resolved by the trial judge until they arise during the
course of the trial. With respect to the proposal for an interlocutory appeal, the
Government now has some existing rights of pretrial appeals, for example,
from pretrial orders suppressing evidence. 18 U.S.C. 3731. The proposed legis-
lation simply extends the right of pretrial appeal to graymall issues and allows
appeal during the trial itself.
These basic proposals are not controversial. They make eminent good sense.
They should be endorsed by the Committee on Law and National Security.
Some are controversial: Recommendations.-Despite the widespread support
for a mandatory pretrial conference to resolve questions of disclosure of national
security information prior to trial, there is opposition to the proposed procedures
the trial court is to follow in determining what disclosures to allow and prohibit
and what standards to employ. To summarize briefly, the proposed legislation
provides for the Government to submit pretrial to the trial judge discovery ma-
terial which the accused would ordinarily be entitled to review. The Govern-
ment can request by its ex parte submission that the court order (1) disclosure
under a protective order (an existing procedure-rule 16(d) (1), F.R., Crim
P.) or (2) nondisclosure with alternatives available such as deletion of portions
of the materials or substitutes of summaries of the material (use of summaries
is new).
The proposals also require an accused who plans to introduce classified mate-
rial at a trial to give prior notice of his intention, with a brief description of the
material. The Government then has the opportunity to seek from the trial judge
a pretrial disclosure ruling with the court making in camera rulings on relevance
and materiality of the information and whether the information can be disclosed
or alternative procedures employed. Similar procedures are available for classi-
fled information the Government intends to introduce at trial. Standards by
which the trial court is to make its rulings are provided.
Set forth below are the issues in dispute. Not all require the Committee on Law
and National Security to take a position. Some, however, are critical to obtain-
ing the obvious goal of this legislation : to accommodate the need of the Govern-
ment to avoid unwarranted disclosure of national security information without
jeopardizing the rights of the accused to a fair trial. These include at least the
issues discussed in sections C, D, and I. Recommendations are provided for all the
controversial issues.
A. Format: Straight legislation or amendments to the Federal rules
Most of those who have testified about the legislative proposals have recom-
mended that they take the form of amendments to the Federal Rules of Criminal
Procedure and the Federal Rules of Evidence. This is also the position of the
Criminal Justice Section. This general proposal is desirable because the amend-
ments as finally enacted would be subject to the continuing supervision and over-
sight of the Judicial Conference and the Supreme Court. See 18 U.S.C. 3771,
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3772; 28 U.S.C. 2076. This oversight and supervision would allow the judiciary
to propose modifications that may be found to be necessary after experience with
the new procedures. No need exists at all, however, to start the process from the
beginning, that is, to return these proposals to the Judicial Conference and the
Supreme Court for their initial review. Legislative proposals have been intro-
duced, they meet a definite need, and any delay to return to the starting point
would be most unfortunate:
One problem of having this legislation in the format of amendments to the
rules is that the legislation deals with the subject matter of a number of rules :
some matters relate to pretrial discovery, other matters relate to pretrial con-
ference, others relate to initial rulings, others relate to interlocutory appeals, and
still others relate to rules of evidence. It would be confusing, certainly to the
private practitioner, to have all matters relating to the problem of graymail
dispersed in a great number of rules. To avoid this problem, it would be prefer-
able to have all the graymail changes incorporated into either one Rule of the
Federal Rules of Procedure or one Rule of the Federal Rules of Evidence. Even
if logically portions of the proposals belong as amendments. to different rules,
placing all changes in one Rule will secure the benefits of Supreme Court and
Judicial Conference oversight and ease of use by judges and lawyers.
B. Invocation of the new graymail procedures
Both S. 1482 and H.R. 4736 require the Attorney General, the Deputy Attorney
General or a designated Assistant Attorney General to initiate or authorize the
invocation of certain of the graymail procedures, file affidavits, or make desig-
nated certifications. The administration bill contains no comparable require-
ments. Any restrictions of this kind, particularly those that require approval
from Washington, D.C., are generally objectionable because they cause undue
delay and inefficiency. However, given the sensitivity of national security in-
formation and the fact that most, if not all, prosecutions that involve national
security information will be closely supervised by the Department of Justice, the
requirement that the Attorney General, the Deputy Attorney General or a
designated Assistant Attorney General initiate use of the graymail procedure
is, on balance, not obectionable. At the very least, the procedures should not be
initiated without the personal approval, if the case is being tried by a U.S.
attorney's office, by the U.S. attorney.
It should, however, be sufficient that a Presidential appointee-Attorney Gen-
eral, Deputy Attorney General, Assistant Attorney General, or U.S. attorney-
invoke the graymail procedures. Contrary to the two legislative proposals, they
should not be subsequently required to submit affidavits or make certifications.
For example, since the Solicitor General of the United States must approve
all appeals, it should not be necessary, as both S. 1482 and H.R. 4736 require,
that one of these other Justice Department. officials "certify" to the district court
that an interlocutory appeal is not taken for the purpose of delay.
C. Em parte and in camera proceedings
All of the legislative proposals make some provision for ex parte submission
by the Government to the courts and either no or limited disclosure to the de-
fense. Some have objected to such a procedure on the grounds that it is uncon-
stitutional since the defendant or counsel is necessary to inform the court of
relevancy and materiality to the defense. They cite in support of their position
the Supreme Court eases of Alderman v. United States, 394 U.S. 165 (1969) and
Jencks v. United States, 353 U.S. 657 (1957).
It is unquestionable that use of ex parte proceedings should be strictly limited.
This does not mean, however, that they are not permissible at all. Congress, the
Supreme Court, and lower Federal courts have previously authorized ex parte
and in camera proceedings. Congress, for example, has authorized ex parte pro-
ceedings in the Jencks Act, 18 U.S.C. section 3500: under ? 3500(e), the
Government may submit ex parte to a judge a prior statement of a Government
witness in camera to determine whether portions of that prior statement are
not relevant to the subject matter of the direct testimony of the witness. See
also, rule 412, Federal Rules of Evidence, which requires an in camera hear-
ings if the accused in a rape case attempts to introduce evidence of the vic-
tim's prior sexual conduct.
The Supreme Court has upheld in camera proceedings in United States v. Nixon,
418 U.S. 683 (1974). It has also approved ex parte resolutions of issues. See Gior-
dano v. United States, 394 U.S. 310, 314 (1969) (Stewart, J. Concurring) ; Taglia-
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netti v. United States, 394 U.S. 316 (1969) (Per Curiam). Neither Alderman v.
United States, supra nor Jencks V. United States, Supra, preclude all ex parte sub-
missions by Government in criminal cases. "Nothing in Alderman v. United States
[and oher cases] requires an adversary proceeding and full disclosure for reso-
lution of every issue by an electronic surveillance." Taglianetti v. United States,
supra, 394 U.S. at 317. Finally, the Freedom of Information Act "contemplates
that the courts will resolve fundamental issues in contested cases on the basis of
an in camera [and ex parte] examination of the relevant documents." Philippi v.
Central Intelligence Agency, 546 F.2d 1009, 1011, 1012-13 (D.C. Cir. 1976). The
Supreme Court has upheld the propriety of this procedure when classified in-
formation is at issue. Environmental Protection Agency v. Mink, 410 U.S. 73
(1973).
Contrary to critics of the proposed legislation, in camera proceedings by the
trial judge to review' ex parte submissions are not unconstitutional. They have
been authorized to meet particularly sensitive problems. Unwarranted disclosure
of national security information is such a sensitive problem and warrants the
proposed procedures provided that appropriate safeguards are present to preserve
it defendant's right to a fair trial and to present and prepare his defense.
The proposed graymail legislation, particularly the administration bill, does
contain appropriate safeguards. The administration bill, for example, requires
the Government to disclose to the defense notice of the classified information or at
least to identify or describe the information by generic category. The Government
must satisfy the court that disclosure of the classified information could reason-
ably be expected to damage the national security. The defendant has a right to be
heard at an in camera hearing. Properly classified material is not to be disclosed
unless relevant and material to "an element of the offense or a legally cognizable
defense." This test in the administration bill (the other legislative proposals do
not contain such provisions) is too narrow. It should be expanded to provide that
the defense is also entitled to disclosure if the classified information is relevant
and material to the credibility, bias, or interest to witnesses. If so expanded, the
procedures set forth on this difficult issue merit support.
D. Use of alternatives to disclosure of classified material
All the bills permit the court, on request of the Government, to provide alter-
native procedures to disclosure of classified information. These include, among
others, the substitution of summaries of the specific classified information or
statements admitting relevant facts that the specific classified information would
tend to prove. If the court determines to follow these procedures, the under-
lying classified documents are to be made part of the record and preserved for
appeal by the defendant. While neither the problem nor the resolution is an
easy one, the procedures set forth in the proposed legislation, particularly those
in the administration bill, do pass constitutional muster and clearly have a basis
in precedent. The ABA Minimum Standards, Discovery and Procedure Before
Trial, 1 11-2.6(c) (2d ed. Approved 1978), for instance, provide that if constitu-
tional rights are not infringed, disclosure of national security information need
not be made at all in discovery. If evidentiary material is deleted and substitu-
tions made, however, the courts will have to take great pains to assure that
the alternatives (1) do not in any way deprive the defense of information to
which it is legitimately entitled, and (2) place the accused in substantially the
same position had the actual classified information been disclosed.
There is one change that should appropriately be made in the legislative
proposals. Their test for the use of substitutes for deleted classified information
is whether the substitutes would deprive or prejudice the right of the defendant
to a fair trial. It would provide the courts with greater guidance and afford
greater protection to the defense if, before the court was permitted to provide
the defendant a substitute for classified information, the court was required
to find that the substitute would not materially impair the ability of the accused
to prepare for trial or present his defense. This required finding by the trial
court, while it does not satisfy the outright objection of those who oppose to
any such procedure, provides a reasonable balance between unwarranted dis-
closures of classified information and protecting the rights of the accused. In
addition, it is important that any legislation make clear that all ex parte sub-
missions by the Government to the court be in writing and all such writings and
all documents not disclosed be made part of the record for appeal.
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E. Reciprocity and bill of particulars
Both bills, S. 1482 and H.R. 4736, provide that if a defendant is required
to disclose prior to trial classified information upon which he intends to rely,
the prosecution must provide reciprocity and also a bill of particulars. The
Criminal Justice Section supports the provisions for a bill of particulars and
the reciprocity provision in H.R. 4736.
(1) Reciprocity.-H.R. 4736 requires that the prosecution, once the defense
discloses the classified information it intends to rely on at trial, must provide
to the defendant not only information, but also the identity of the witnesses it
intends to call to provide this rebuttal. Supporters of his reciprocity provision,
including the Criminal Jusitce Section, claim tnat' this disclosure is constitu-
tionally necessary under Wardius v. Oregon, 412 U.S. 470 (1973). This is not so.
If the disclosure of classified information by the defense consists of documents,
such documents would ordinarily be disclosed as part of the defense pretrial
discovery to the prosecution under rule 16(b) of the F.R. Crim. P. The only effect
of the graymail legislation, therefore, is to require the defendant in this instance
to disclose the classified nature of the information so that appropriate protective
procedures may be pursued by the Government if it chooses to do so. Since, so
far as documents are concerned, no additional discovery from the defense is
required, no additional discovery with respect to documents should be required
from the Government.
If the classified information which the defendant is required to disclose
would be from the testimony of witnesses, however, then fairness would require
that the Government disclose to the defense its rebuttal information. There
should, however, be no requirement that the Government disclose the identity
of its rebuttal witnesses unless the defense is required not only to disclose the
classified information, but also the identity of its witnesses that will be tes-
tifyipg about this information. Reciprocity must be truly equal. In H.R. 4736,
? 107, reciprocity is not equal. It is, therefore, objectionable. The Administration
provision is deficient, however, because it provides for no reciprocity at all, even
when the disclosures required by the defense reveal identity of it witnesses.
(2) Bill of Particulars.-Both S. 1482 and H.R. 4736 provide that the Govern-
ment must provide a bill of particulars with respect to those portions of the
indictment or information as to which the defendant is forced to disclose classi-
fied information. These provisions misconstrue the purpose of a bill of particulars.
The purpose is to permit a defendant to prepare his defense and to protect him
against a subsequent charge for the same offense ; that is, to preserve his right
against being placed in double jeopardy. It is hornbook law that the purpose
of a bill of particulars is not to provide evidence or to inform the defense of the
Government's legal theory. Thus, the requirement that the Government furnish
fl bill of particulars with respect to classified information disclosed by the defense
simply makes no sense. It should be fully sufficient that the Government provide
the discovery required by rule 16 and the reciprocal information specified in the
preceding paragraph.
F. Proposed Jencks Act amendment
Perhaps the most controversial provision in both the administration and Sena-
tor Biden's bills, though hardly the most important, is the proposal to amend
the Jencks Act to insert a new section 3500(c). Under this provision, the court
would be allowed to excise from the prior statement of a Government witness,
not only classified material which is not relevant to the subject matter of the
witness' direct testimony (which can be excised under the existing statute) but
also relevant classified material which is "consistent with the witness'
testimony".
The Criminal Justice Section strongly objects to this provision as do a num-
ber of witnesses who have testified. The purpose of the provision, however, is
not unreasonable. Under existing section 3500(c), there can be classified infor-
mation which, though related to the subject matter of the witness' direct testi-
mony and which consequently must be disclosed to the defense under current
law, is not at all material to the defendant's credibility or to his bias, interest,
or prior conduct. This classified information can safely be deleted without jeop-
ardizing constitutional or other rights of the accused. The test contained in the
administration bill and S. 1482, however, that material can be deleted from the
prior statement if it is "consistent" with the direct testimony does not make
sense. Consistency or inconsistency, for that matter, are not appropriate tests.
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What the court should be allowed to do upon Government request is to delete
not only information that is not related to the subject matter of the direct
testimony (existing law), but also classified information that is immaterial to
the direct testimony so far as credibility, bias, interest, or prior conduct are
concerned. If the proposals are amended as suggested, they are not unacceptable.
G. Limiting disclosure of witnesses when they.testify
All the bills contain provisions that permit the Government to object to ques-
tioning of a witness that may elicit classified information during trial. Legisla-
tion should make clear, as the various proposals do not, that the procedures to
be followed in this situation are the same procedures that apply to the pretrial
graymail procedures. This is necessary to assure that the rights of the accused
are adequately protected by determinations of whether or not information is
classified and can be disclosed. and if it cannot be disclosed, whether alternative
procedures can be determined that will not materially impair the right of the
defendant to present his defense.
H. Introduction and proof of contents of classified documents at trial
The administration bill contains three provisions that relate to the introduc-
tion and proof of contents of classified documents at trial that are not present
in either S. 1482 or H.R. 4736. The most important provision would authorize
the court to allow either the introduction into evidence of only a portion of a
classified document or the deletion of some or all of the classified information
from a document, recording, or photograph introduced in a criminal case. The
defendant is provided, of course, the right to argue against the deletions and is
free to contend that the excised portions should be disclosed because they are
relevant and material to his defense. Another provision would permit the Gov-
ernment to minimize the disclosure of classified information by providing the
contents of a classified writing, recording, or photography without introducing
the original or a duplicate into evidence. This provision is inconsistent with
the best evidence rule (rule 1002 of the Federal Rules of Evidence), but it would
apply to situations in which it is impractical to delete sensitive material from the
document and yet afford an alternative procedure that in no way interferes with
the rights of the accused. These provisions are reasonable and afford solutions
to problems that can. arise at trial with respect to the introduction of docu-
ments containing classified material.
1. Special oversight in reporting requirements
Both S. 1482 and H.R. 4736 require the Department of Justice to prepare writ-
ten findings detailing the reasons for any decision not to prosecute because of
graymail type problems and report its findings to certain congressional com-
mittees. This requirement would appear to be inconsistent with the separation of
powers and independence of the prosecution function of the executive branch of
Government. The reporting requirement is an unwarranted intrusion into the de-
liberations and the files of the Justice Department. If the intelligence committees
of the Congress are concerned about the nonprosecution of a particular case.
inquiry can be made on a more discreet and focused basis. There is no precedent
for such a detailed reporting requirement and there is no pattern of practice of
the Department of Justice refusing to provide appropriate information to the
Congress on a case-by-case basis.
Certainly Congress has a legitimate concern to assure itself that prosecutions
of Government officials are not being dismissed or inadequately investigated
because of overblown, exaggerated fears of disclosures of classified information.
The question is whether the proposals in S. 1482 and H.R. 4736 are necessary to
protect against this possible abuse. Absent a track record of noncooperation from
the Department of Justice in disclosing pertinent material, a more measured
approach is appropriate.
There does not seem to be serious opposition to the underlying purposes of the
proposed graymail legislation. There are significant differences about the most
desirable procedures to effectuate these underlying purposes. The objections of
the Criminal Justice Section are such that they would operate to prevent a reso-
lution of the graymail problem. They would permit a mandatory pretrial confer-
ence and an interlocutory appeal. However, they would allow the court no
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83
discretion to delete or excise classified material or to provide alternative sub-
stitutes. The courts would also have no authority to review the ex parte submis-
sions by the Government in camera despite ample precedent for so doing. If the
court cannot review the material in camera and if the court cannot, after such
review, make decisions to delete certain material or provide alternative substi-
tutes, then the purposes of the graymail legislation to resolve the potential con-
flict between unwarranted disclosures of national security information and
protecting the rights of the accused cannot be accomplished. Contrary to the
Criminal Justice Section, reasonable accommodation can be made along the lines
suggested in this report.
PREPARED STATEMENT OF PROF. WILLIAM W. GREENHALOH
My name is Prof. William W. Greenhalgh of Georgetown University Law
Center. I am a former Chief Assistant U.S. attorney for the District of Colum-
bia. I have been teaching Federal criminal trial advocacy at the graduate level
(E. Barrett Prettyman Fellowship Program-L.L.M. in Trial Advocacy) since
1963. I also am presently Chairperson of the Criminal Justice Section's Com-
mittee on Criminal Code Revision of the American Bar Association, as well
as its faculty advisor to the American Criminal Law Review.
In connection with the Prettyman Fellowship Program, the 90 that have
gone through its intensive, concentrated course of individual criminal trial
litigation have represented, conservatively, over 2,000 indigents charged with
various felonies both in U.S. District Court for the District of Columbia and
the Superior Court for the District of Columbia. The program has likewise
prosecuted well over 100 appeals before the U.S. Court of Appeals for the D.C.
Circuit and the District of Columbia. Court of Appeals. I offer this background
only in the context of some familiarity with criminal trial procedure.
I support the concept of S. 1482, entitled "The Classified Information Crim-
inal Trial Procedures Act," familiarly known as the Biden bill. The. Biden 'bill
addresses a serious problem which the Congress should resolve. However, I do
not believe that separate legislation is necessary to accomplish this.
I feel that the best way to address the issues is through the oversight capa-
bility of the Advisory Committees of the U.S. Judicial Conference relative to
the Federal Rules of Criminal Procedure and/or Federal Rules of Evidence. As
you know, the Supreme Court of the United States then promulgates rule
changes, and you, the Congress, may then work your legislative will on pro-
posed amendments. It is my position that this method provides for greater
superintendence by involving the academic community, the practicing bar, the
Federal judiciary and the legislature- There seems to be more flexibility in this
approach than to lock into legislative concrete a highly complex, albeit im-
portant, technically procedural piece of legislation.
Also, it appears that the Congress has jurisdiction to amend either the Fed-
eral Rules of Criminal Procedure or the Federal Rules of Evidence even at this
point in legislative time. I have in mind "The Privacy Protection for Rape Vic-
tims Act of 1978," which amended article IV of the Federal Rules of Evidence
by adding new rule 412. Rape Cases ; Relevance of Victim's Past Behavior
P.L. 95-540, 95th Congress; 92 Stat. 2046 (1978).
I, therefore, support modest amendments to existing rules and one statute.
For, If anything has surfaced during the hearing held by the Legislation Sub-
committee of the House Permanent Select Committee on Intelligence on August 7,
1979, it was the fact that existing Federal rules appear to be adequately meeting
the graymail problem. The ITT-Chile case was the only one mentioned where an
interlocutory appeal procedure would have been helpful to the Justice Depart-
ment, and since that remedy was lacking, mandamus was not appropriate.
I believe that the objectives of section 101 of the Biden bill could be better
accomplished by the following action :
(1) Amend present rule' 17.1 of the Federal Rules of Criminal Procedure in
cases involving classified information to provide a mandatory pretrial confer-
ence to be ordered by the court on motion of either party.
This will still effectuate the saluatory goal of section 101 by insuring that
issues involving pretrial and trial discovery will be handled in such a manner
as to "promote a fair and expeditious trial."
(2) Amend either rule 12 of the Federal Rules of Criminal Procedure (new
Rule 12.3) or the appropriate Federal Rule of Evidence to include a new pro-
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vision that would require mandatory procedure for determination of classified
information disclosure either pretrial or during trial (section 102). This amend-
ment should also include the provision found in section 107 of the Biden bill
requiring the Government to provide the defendant with reciprocal disclosure.
This discovery vis-a-vis reciprocity section is extremely important in view of
Wardius V. Oregon, 412 U.S. 470 (1973). I believe that the inclusion of the pro-
vision relating to the entitlement of the defendant to be advised of information
and witnesses which the Government intends to sue to rebut particular classified
information, as well as some form of discovery but not called a bill of particulars
as contained in section 107, detailing related aspects of the prosecution's case,
is essential to the fundamental fairness of this new rule.
(3) Amend title 18 U.S.C. 3731 to provide for an interlocutory appeal in classi-
fied information cases by the Government before or during trial. This amendment
should provide also for expeditious determination of pretrial appeals. The pro-
visions of section 3731 as to pretrial release should be closely followed, as well.
A simple amendment to section 3731 is all that is necessary.
Moving along to the most controversial section of the Biden bill (section 10),
in my submission, I flatly oppose any amendments to 18 U.S.C. 3500, familiarily
known as the Jencks Act. It has worked pretty well in Federal criminal trials
for some 22 years. It is the only mandatory trial discovery permitted the defend-
ant. It is uniformly applicable in all Federal criminal courts. It mandates excis-
sion only of unrelated. matter. It permits the Government the option of refusing
to produce the witness statements. It also provides a list of sactions for. nondis-
closure, which do not necessarily indicate the termination of the prosecution. To
create a classified information exception will predictably lead to other proposed
exceptions, with the end nowhere in sight.
While it is true that the House of Delegates of the American Bar Association
in August 1978 in New York adopted a new Standard 1.1-2.6(c) of the "Standards
Relating. to Discovery and Procedure Before Trial," which provides that "dis-
closure shall not be required when it involves substantial risk of grave prejudice
to national security and where a failure to disclose will not infringe the Consti-
tutional rights of the accused," [emphasis added], I believe proposed section 10
will so intrude. I contend that its enactment will severely impinge on the right
of the defendant to have the assistance of counsel during the course of a Federal
criminal trial, as well as seriously restrict counsel's ability to confront the Gov-
ernment's accusers.
A look at how the Jencks Act now operates will reinforce my.point. There are
now four prerequisites for production of material under the act : That the ma-
terial be in the possession of the Government ; that the defense request produc-
tion of the. documents that the material constitute a statement as defined in the
act (statements written and signed or adoped by the witness, substantially
verbatim contemporaneously recorded statements, and grand jury testimony) ;
and that the witness' statement relate to the subject matter of the direct exami-
nation. A prosecutor's notes .of his interview with the witness prior to trial are
also producible under the Jencks Act, Goldberg v. U.S., 425 U.S. 94 (1976). This
will become a problem for government prosecutors who are actively preparing
a graymail case for trial.
The court's supervisory powers in handling Jencks Act disclosure were spelled
out in two cases. Campbell v. U.S. (Campbell I), 365 U.S. 85 (1961), and Camp-
bell V. U.S. (Campbell II), 373 U.S. 487, 493 (1963). At a Campbell hearing, the
court determines such matters as whether the documents exist, whether the ma-
terial constitutes a statement under the Jencks Act, and whether the statement
relates to the subject mater of the testimony. It is unclear how the Campbell
hearing procedure will mesh with the Jencks Act exception which would be
created by this legislation. The Supreme Court has also held that summaries are
not producible under the Jencks Act. Palermo v. U.S., 360 U.S. 343 (1959). It is
also unclear what the ramifications of that case on the pending legislation would
be, especially where summaries would be substituted.
Again, I repeat, enactment of this Jencks Act change will severely impinge
on the right of the defendant to have the effective assistance of counsel during
the course of a criminal trial, since it will impair his ability to cross-examine
effectively. It will also seriously restrict his constitutionally-granted right to
confront his accusers.
Turning to the. first of these constitutional infirmities, excision of a portion
of the Government witness' statement because of consistency or substitution of
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a summary when consistent would deny the defense lawyer access to one of the
most important criminal trial rights impeachment. The lawyer in our adversary
system should make the decision as to whether or not to use the statement not
the court. Dennis v. U.S., 384 U.S. 874-875 (1966) ; Anders v. California, 386 U.S.
738, 744 (1967) ; Alderman v. U.S., 394 U.S. 165, 182-183 (1968). Only the lawyer
knows the value of impeachment material. Jencks v. U.S., 353 U.S. 657, 667-668
(1957). In an adversary. system of criminal justice, there is no right more
essential than the right to assistance of counsel. Lakeside v. Oregon, 435 U.S.
333, 341 (1978). But the attorney must not be denied the means with which to
effectuate that right.
Statutory procedures that impair the accused's enjoyment of the sixth amend-
ment in disabling counsel from fully assisting and representing his client are, in
my view, unconstitutional. The Supreme Court has struck down three State
statutes and one court order where there was disablement by statute or order
of counsel's ability at trial to render effective assistance-where a statute would
not let a lawyer elicit testimony on direct examination, Ferguson v. Georgia, 365
U.S. 570 (1961) ; where a statute failed to let counsel decide who to put on the
stand, Brooks v. Tennessee, 406 U.S. 605 (1972) ; where a statute prohibited
counsel from arguing in summation in a nonjury case, Herring v. New York, 422
U.S. 853 (1975) ; and where an attorney was prohibited by the court from talking
with his client during an overnight recess, Getters v. U.S., 425 U.S. 80 (1976).
My impairment of confrontation argument is equally blunt. You can't cross-
examine with a summary. Yet cross-examination is a matter of right. A lawyer
may ask a witness concerning identification with the community in light of one's
environment. He may surely discredit a witness by demonstrating that the testi-
mony is untrue or biased. All these great constitutional principles were clearly
enunciated by the Supreme Court almost 50 years ago in Alford v. U.S., 282 U.S.
687, 691-692 (1931).
In summary, excision denies counsel access for purposes of cross-examination,
and producing a summary disables counsel from effectively pursuing the right
of cross-examination, Davis v. Alaska, 415 U.S. 308, 318 (1974). In either case,
the accused is denied effective assistance of counsel. Section 10, in my submis-
sion, cannot pass constitutional muster.
Senator BIDEN. Gentlemen, thank you very much. The hearing is
adjourned.
[Whereupon, at 1:50 p.m., on Thursday, February 7, 1980, the hear-
ing was adjourned.]
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APPENDIX
To provide certain pretrial, trial, and appellate-procedures for criminal cases
involving classified information.
IN THE SENATE OF THE UNITED STATES
JULY 11 (legislative day, JUNE 21), 1979
Mr. BIDEN (for himself, Mr. BAYII, Mr. HUDDLESTON, and Mr. KENNEDY)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
A BILL
To provide certain pretrial, trial, and appellate procedures for
criminal cases involving classified information.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Classified Information
4 Procedures Act".
5 DEFINITIONS
6 SECTION 1. (a) "Classified information", as used in this
7 Act, means any information or material that has been deter-
8 mined by the United States Government pursuant to an Ex-
9 ecutive order, statute, or regulation, to require protection
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2
1 against unauthorized disclosure for reasons of national secu-
2 rity and any restricted data, as defined in section 2014(y) of
3 title 42, United States Code.
4 (b) "National security", as used in this Act, means the
5 national defense and foreign relations of the United States.
6 PRETRIAL CONFERENCE
7 SEC. 2. At any time after the filing of the indictment or
8 information, any party may move for a pretrial conference to
9 consider matters relating to classified information that may
10 arise in connection with the prosecution. Following such
11 motion, or on its own motion, the court shall promptly hold a
12 pretrial conference to establish the timing of requests for dis-
13 covery, the provision of notice required by section 5 of this
14 Act, and the initiation of the procedure established by section
15 6 of this Act. In addition, at the pretrial conference the court
16 may consider any other matters which relate to classified in-
17 formation or which may promote a fair and expeditious trial.
18 PROTECTIVE ORDERS
19 SEC. 3. Upon request of the Government, the court
20 shall issue a protective order to guard against the compro-
21 mise of any classified material disclosed to the defendant.
22 DISCLOSURE OF CLASSIFIED INFORMATION TO
23 DEFENDANTS
24 SEC. 4. The court may authorize the Government to
25 delete specified items of classified information from docu-
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1 ments to be made available to the defendant, to substitute a
2 summary of the information for such classified documents, or
3 to substitute a statement admitting relevant facts that the
4 classified information would tend to prove. The Govern-
5 ment's motion requesting such authorization and materials
6 submitted in support thereof shall, upon request of the Gov-
7 ernment, be considered by. the court in camera and not dis-
8 closed to the defendant.
9 NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE
10 CLASSIFIED INFORMATION
11 SEC. 5. (a) NOTICE BY DEFENDANT.-If a defendant
12 reasonably expects to disclose or to cause the disclosure of
13 classified information in any manner in connection with any
14 trial or pretrial proceeding involving the criminal prosecution
15 of such defendant, the defendant shall, within the time speci-
16 fied by the court or where no time is specified within thirty
17 days prior to trial, notify the attorney for the Government
18 and the court in writing. Whenever a defendant learns of
19 additional classified information he reasonably expects to dis-
20 close at any such proceeding, he shall notify the attorney for
21 the Government and the court in writing as soon as possible
22 thereafter. Such notice shall include a brief description of the
23 classified information. No defendant shall disclose any infor-
24 mation known or believed to be classified in connection with
25 a trial or pretrial proceeding until notice has been given
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1 under this subsection and until the Government has been af-
2 forded a reasonable opportunity to seek a determination pur-
3 suant to the procedure set forth in section 6 of this Act.
4 (b) FAILURE TO COMPLY.-If the defendant fails to
5 comply with the requirements of subsection (a) the court may
6 preclude disclosure of any classified information not made the
7 subject of notification and may prohibit the examination by
8 the defendant of any witness with respect to any such infor-
9 mation.
10 PRECEDURE FOR CASES INVOLVING CLASSIFIED
11 INFORMATION
12 SEC. 6. (a) MOTION FOR BEARING.-After the United
13 States receives notification pursuant to section 5 or otherwise
14 learns of any classified information that the defendant may
15 disclose or cause to be disclosed at a trial or pretrial proceed-
16 ing, the Government may, within the time specified by the
17 court, move for a hearing concerning any such information.
18 In connection with its motion, the Government may submit
19 the classified information along with an explanation of the
20 basis for the classification to the court for its examination in
21 camera and shall provide the court with an affidavit of the
22 Attorney General, the Deputy Attorney General, or a desig-
23 nated Assistant Attorney General certifying that the informa-
24 tion is classified. The hearing, or-specified portion thereof,
25 shall be held in camera whenever the Government certifies
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1 that a public proceeding may result in the compromise of
2 classified information.
3 (b) HEARING}.-(1) Prior to the hearing, the Govern-
4 ment shall provide the defendant with notice of the informa- ?
5 tion that will be at issue. This notice shall identify the
6 specific classified information that will be at issue whenever
7 that information has previously been made available to the
8 defendant in connection with the pretrial proceedings. The
9 Government may describe the information by generic catego-
10 ry rather than identifying the specific information of concern
11 to the Government when the Government has not previously
12 made the information available to the defendant in connection
13 with the pretrial proceedings.
'14 (2) Where the Government moves for a hearing prior to
15 trial, the Government shall upon request of the defendant
16 provide the defendant with a bill of particulars as to the por-
17 tions of the indictment or information which the defendant
18 identifies as related to the classified information at issue in
19 the hearing. The bill of particulars shall be provided prior to
20 the hearing.
21. (3) Following: a hearing, the court shall determine
22 .whether and the manner in which the information at issue-
23 may be used, in a -trial- or-preirial? proceeding-. As to :each item-
24: of classifie& information, the court -shalf set -forth-'in- writing=
25 the basis for its determination. Where the Government's
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1 motion under subsection (a) is filed prior to the trial or pre-
2 trial proceeding, the court shall rule prior to the commence-
3 ment of the relevant proceeding.
4 (4)(A) If the court determines that the information may
5 not be disclosed or elicited at a pretrial or trial proceeding
6 the record of the hearing shall be sealed and preserved by the
7 Government in the event of an appeal. The defendant may
8 seek reconsideration of the court's determination prior to or
9 during trial.
10 (B) In lieu of authorizing disclosure of the specific clas-
11 sified information, the court shall, if it finds that the defend-
12 ant's right to a fair trial will not be prejudiced, order-
13 (i) substitution of a statement. admitting relevant
14 facts that the specific classified information would tend
15 to prove, or
16 . (ii) substitution of a summary or portion of a spe-
17. cific classified information. . .
18 (C) If the court determines that these alternatives to full
19 disclosure may not be used and the Government provides the
20 court with an affidavit of the Attorney General, Deputy At-
21 torney General, or designated Assistant Attorney General
22 objecting to disclosure of the information, the court shall
23 issue any order which is required in the interest of justice.
24 Such an- order may include, but need not be limited to an
25 order-
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1 (i) striking or precluding all or part of the testi-
2 mony of a witness; or
3 (ii) declaring a mistrial; or
4 (iii) finding against the Government on any issue
5 as to which the evidence relates; or
6 (iv) dismissing the' action, with or without preju-
7 dice; or
8 (v) dismissing specified counts of the indictment
9 against the defendant.
10 Any such order shall permit the Government to avoid the
11 sanction for nondisclosure by agreeing to permit the defend-
12 ant to disclose the information at the pertinent trial or pre-
13 trial proceeding. The Government may exercise its right to
14 take an interlocutory appeal prior to determining whether to
15 permit disclosure of any classified information.
16 (c) RECIPROCITY.-Whenever the court determines
17 pursuant to subsection (b) that classified information may be
18 disclosed in connection with a trial or pretrial proceeding, the
19 court shall, unless the interest of fairness do not so require,
20 order the Government to provide the defendant with the in-
21, formation it expects to use to-rebut the classified information.
22._: he ..cnurtmay Place the Government under -a; continuing
23 duty.to.;diselose:such rebi ttal information: R the Government
24' fails to comply--with, its obligation under--this'- subsect on', the"
25 court may exclude any evidence not made the subject of a
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1 required disclosure and may prohibit the examination by the
2 Government of any witness with respect to such information.
3 INTERLOCUTORY APPEAL
4 SEC. 7. (a) An interlocutory appeal by the United States
5 taken before or after -the defendant has been placed in jeop-
6 ardy shall lie to a court of appeals from a decision or order of
7 a district court in a criminal case requiring the disclosure of
8 classified information, imposing sanctions for nondisclosure of
9 classified information, or refusing a protective order sought
10 by the United States to prevent the disclosure of classified
information, if the At: orney General, Deputy Attorney Gen-
eral, or designated Assistant Attorney General certifies to
the district court that the appeal is not taken for purposes of
delay.
(b) An appeal taken pursuant to this section either
before or during trial shall be expedited by the court of ap-
peals. Prior to trial, an appeal shall be taken within ten days
18 after the decision or order appealed from and the trial shall
19 not commence until the appeal is resolved. If an appeal is
20 taken during trial, the trial court shall adjourn the trial until
21 the appeal is resolved and. the court of appeals (i) shall hear
22 argument on such appeal within four days of the adjournment
ti 23 of the trial, (ii) may dispense with written briefs other than
24 the supporting materials previously submitted to the trial
25 court, (iii) shall render its decision within four days of argu-
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1 ment on appeal, and (iv) may dispense with the issuance of a
2 written opinion in rendering its decision. Such appeal and
3 decision shall not affect the right of the defendant, in a subse-
4 quent appeal from a judgment of conviction, to claim as error
5 reversal by the trial court on remand of a ruling appealed
6 from during trial.
7 INTRODUCTION OF CLASSIFIED INFORMATION
8 SEC. 8. (a) CLASSIFICATION STATUS.-Writings, re-
9 cordings, and photographs containing classified information
10 may be admitted into evidence without change in their classi-
11 fication status.
12 (b) PRECAUTIONS BY COURT.-The court, in order to
13 prevent unnecessary disclosure of classified information in-
14 volved in any criminal proceeding, may order admission into
15 evidence of only part of a writing, recording, or photograph,
16 or may order admission into evidence of the whole writing,
17 recording, or photograph with excision of some or all of the
18 classified information contained therein.
19 (c) TAKING OF TESTIMONY.-During the examination
20 of a witness in any criminal proceeding, the Government may
21 object to any question or line of inquiry that may require the
22 witness to disclose classified information not previously found
23 to be admissible. Following such an objection, the court shall
.24 take such suitable action to determine whether the response
25 is admissible as will safeguard against the compromise of any
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1 classified information. Such action may include requiring the
2 Government to provide the court with a proffer of the wit-
3 ness' response to the question or line of inquiry and requiring
4 the defendant to provide the court with a proffer of the
5 nature of the information he seeks to elicit.
6 SECURITY PROCEDURES TO SAFEGUARD AGAINST COM-
7 PROMISE OF CLASSIFIED INFORMATION DISCLOSED
8 TO THE COURT
9 SEC. 9. (a) Within one hundred and twenty days follow-
10 ing the date of enactment of this Act, the Chief Justice of the
11 United States, in consultation with the Attorney General, the
Director of Central Intelligence, and the Secretary of De-
fense, shall prescribe security procedures for protection
against the compromise of classified information submitted to
the Federal district courts, the courts of appeals, and the
Supreme Court.
(b) Until such time as procedures are promulgated pur-
suant to subsection (a), the Federal courts shall in each case
involving classified information adopt procedures to protect
against the compromise of such information.
JENCKS ACT EXCEPTION FOR CLASSIFIED INFORMATION
SEC. :10., (a) . Chapter 223 ,of, title,. 18? Unite4,.. $tate
Code., is amended by adding after: subsection 3 00(c) the;;fol .
lowing new.subsection:
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1 "(d) If the United States claims that any statement oth-
2 erwise producible under this section contains classified infor-
3 mation, the United States may deliver such statement for the
4 inspection of the court in camera and provide the court with
5 an affidavit from the Attorney General, Deputy Attorney
6 General, or designated Assistant Attorney General identify-
7 ing the portions of the statement that are classified. If the
8 court finds that any such portion of the statement is consist-
9 ent with the witness' testimony, the court may substitute a
10 summary for the classified portion or excise the portion from
11 the statement. With such material replaced by a substitution
12 or excised, the court shall then direct delivery of such state-
13 ment to the defendant for his use. If, pursuant to such proce-
14 duce, any portion of such statement is withheld from the de-
15 fendant and the defendant objects to such withholding, and
16 the trial is continued to an adjudication of the guilt of the
17 defendant, the entire text of such statement as well as the
18 affidavit submitted by the United States shall be preserved by
19 the United States and, in the event the defendant appeals,
20 shall be made available to the court of appeals for its exami-
21 nation for the purpose of determining the correctness of the
22 ruling of the trial judge. Whenever any statement is delivered
23 - to a defendant pursuant to this section, the court in its discre-
24 tion, upon application of said defendant, may recess proceed-
25 ings in the trial for such time as it may determine to be
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reasonably required for the examination of, such statement by
said defendant and his preparation for its use in the trial.".
(b) Chapter 223 of title 18, United States Code, is
amended as follows:
. (1) Present subsections 3500(d) and 3500(e) shall
be redesignated subsections 3500(e) and 3500(f), re-
spectively.
(2) In new subsection 3500(e), following the word
"under" replace "subsection (b) or (c)" with "subsec-
tion (b), (c), or (d).".
(3) In new subsection 3500(f), following the words
"used in" replace "subsection (b), (c), and (d)" with
"subsection (b), (c), (d), and (e).".
IDENTIFICATION OF INFORMATION RELATED TO THE
NATIONAL DEFENSE
any prosecution in which the Government
17 must establish that material relates to the national defense or
18 constitutes classified information, the Government shall
19 notify the defendant, within the time specified by the court, of
20 the portions of the material that it reasonably expects to rely
21 upon to establish the national defense or classified informa-
22 tion element of the offense.
23,.. ., ... ATTORNEY GENERAL:_GUIDELINES.:.'.."
24 ; . SEC. -:12.-.(a) Within one: hundred and eighty-.days'. o# en- .
25 actment of this law, the Attorney General shall issue guide-
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1 lines specifying the factors to be used by the Department of
2 Justice in rendering a decision whether to prosecute a viola-
3 tion of Federal law in which, in the judgment of the Attorney
4 General, there is a possibility that classified information will
5 be revealed. Such guidelines shall be transmitted to the ap-
6 propriate committees of Congress.
7 (b) When the Department of Justice decides not to pros-
8 ecute a violation of Federal law pursuant to subsection (a), an
9 appropriate official of the Department of Justice shall pre-
10 pare written findings detailing the reasons for the decision
11 not to prosecute. The findings shall include-
12 (1) the intelligence information which the Depart-
13 ment of Justice officials believe might be disclosed,
14 (2) the purpose for which the information might
15 be disclosed,
16 (3) the probability that the information would be
17 disclosed, and
18 (4) the possible consequences such disclosure
19 would have on the national security.
20 (c) Consistent with applicable authorities and duties, in-
21 eluding those conferred by the Constitution upon the execu-
22 tive and legislative branches, the Attorney General shall
23 make available to the Permanent Select Committee on Intel-
24 ligence of the United States House of Representatives and
25 the Select Committee on Intelligence of the United States
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14
1 Senate all findings under subsection (b) not later than thirty
2 days after the decision not to prosecute is made.
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ADDITIONAL SUBMISSIONS OF PHILIP A. LACOVARA
a.~t '~ 80096
February 7, 1980
BY HAND
The Honorable Joseph R. Biden, Jr.
Chairman, Criminal Justice
Subcommittee
United States Senate
Committee on the Judiciary
Washington, D. C. 20510
Attention: Mark Gitenstein
Re: Graymail Legislation/S. 1482
Dear Senator Biden:
I appreciate your invitation of January 14 to appear at
today's hearings on the graymail legislation. Other commit-
ments have prevented me from accepting your invitation.
As a member of the House of Delegates of the American
Bar Association, I wish to bring to your attention the action
taken on behalf of the American Bar Association at our midyear
meeting in Chicago on February 4, 1980. At that session, the
House adopted the enclosed resolution generally endorsing the
graymail legislation and making a number of specific recommen-
dations. These statements of position are generally in accord
with my own views, and I submit them for the subcommittee's
consideration.
The one exception is paragraph 6 of the resolution, which
was amended on the floor to recommend allowance of interlocutory
appeals by defendants as well as the government . from adverse pro-
cedural rulings. Since the defendant has a right to appeal from
a final judgment against him and the government has no similar
right, I consider this recommendation unnecessary and ill-advised.
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The Honorable Joseph R. Biden, Jr.
.February 7, 1980
Page Two
I am also enclosing for insertion in the record, if you
consider it appropriate, copies of my earlier testimony before
other committees on the questions posed by S. 1482. -
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SUBSTITUTE. RESOLUTION
AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
AND
STANDING COMMITTEE ON LAW AND NATIONAL SECURITY
REPORT
TO THE HOUSE OF DELEGATES
RESOLVED, that the American Bar Association supports enactment of "graymail"
legislation which will appropriately accommodate and balance the need of the
government to avoid unwarranted disclosure of national security information In
criminal investigations and trials and the need to assure the accused in criminal
cases their right to fair trial. To accomplish these objectives, the
American Bar Association recommends:
1. That Congress amend either the Federal Rules of Criminal Procedure
or the Federal Rules of Evidence to incorporate the proposed
legislative changes;
2. That in cases involving classified information, a mandatory pre-
trial conference be ordered by the court on motion of either
the prosecution or defense;
3. That the mandatory pre-trial conference be held in camera at the
request of the government to avoid unwarranted disclosure of
classified information;
4. That after reviewing (1) the ex parts submission by the prosecution
of classified information, or (2) the classified information which the
defense proposes to disclose, and after both the prosecution and
defense have had an opportunity to be heard, the court may order that,
(a) all of the classified information be disclosed to the defense
and/or be available for use at trial or other proceedings; or
(b) only portions of the classified information be so disclosed
and/or available; or
(c) only summaries of some or all of the classified information be
Ao disclosed and/or available; or
(d) none of the classified information be so disclosed and/or
available; or
(e) the prosecution may proffer a statement admitting for purposes
of the proceedings or trial any relevant facts such classified
information would tend to prove,
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provided that the court must proceed pursuant to subsection (a)
above if it finds that, with use of the other alternatives, disclosure
of the classified information would remain relevant and material to.
an element of the criminal offense, to a legally cognizable defense, a
or to the credibility, bias, or interest of any witness;
5. That all classified information not disclosed to an accused be placed
under seal of the court and be secured and maintained for appeal;
6. That 18 U.S.C. 4 373be amended to provide for interlocutory appeal
br N+ before or dur~} trial from an order of the trial
court in a criminaltse requiring t"aiscloaure of classified
information, m.psing sa`n1tions fo4 nondisclosure of classified
information or reusing a protective order to prevent the disclosure
of classified information, provided that provision be made for expeditious?
resolution of any such appeal and the provisions of Section 3731 on
pre-trial release be followed;
7. That the Attorney General, Deputy Attorney General, or a designated
Assistant Attorney General be required to make to the court the
initial invocation of these classified information procedures;
8. That provisions in pending graymail legislation amending the Jencks
Act (18 U.S.C. 4 3500) be opposed as presently drafted; but that
if alternative amendments are proposed, that they appropriately
accommodate and balance the need of the government to avoid unwarranted
disclosure of national security information and the need to assure the
accused in criminal cases their right to a fair trial.
9. That if as a result of the procedures adopted in the graymail legislation
the defense is required to disclose information it would not otherwise
.be required to disclose under the Federal Rules of Criminal Procedure,
then the government shall be required to disclose to the defense that
information it will rely'on to rebut what the defense has disclosed.
(thus providing that if the defense is required to reveal the identity
of its witnesses who will disclose the particular classified information
at issue, the government will disclose the witnesses it will call in
rebuttal); and that in light of this, inclusion of a "bill of particulars"
provision in the "graymail" legislation is unnecessary.
10. That provisions in pending "graymail" legislation should be opposed
which would impose on the Department of Justice automatic, detailed
reporting requirements to the Congress whenever a decision is made not
to prosecute a person because of the possibility that classified
information will be revealed.
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Statement of
UNITED STATES HOUSE OF REPRESENTATIVES
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON LEGISLATION
PROPOSED LEGISLATION TO ESTABLISH CLASSIFIED
INFORMATION TRIAL PROCEDURES
H.R. 4736 AND H.R. 4745
Mr. Chairman:
It is a privilege to accept the invitation to testify on
the two bills that the Subcommittee has under consideration.
Each of these bills represents a substantial and worthwhile
effort to resolve the "disclose or dismiss" dilemma that has
frustrated otherwise warranted criminal investigations and has
aborted important criminal prosecutions.
These bills are the response to hearings held last year
by the Subcommittee on Secrecy and Disclosure of the Senate
Select Committee on Intelligence and earlir this year by
this Subcommittee. One major focus of those inquiries was
* Partner, Hughes Hubbard & Reed, Washington, D.C.; formerly
Counsel to the Watergate Special Prosecutor and Deputy'Solici-
for General of the United States.
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the so-called "gray mail" problem. That term describes a
threat by a suspect in a criminal investigation or by a
defendant in a criminal prosecution to force the disclosure
of national security information if the prosecution proceeds.
In a number of cases, the government's concession to those
threats has effectively conferred immunity from the federal
criminal laws.
Even apart, however, from overt threats asserted as a
matter of bargaining strategy, the historic reluctance of
the intelligence community to risk compromising its infor-
mation and the resulting tensions between the intelligence
agencies and the Justice Department have led federal autho-
rities to abandon seemingly justified criminal investiga-
tions in a mood of premature despair.
The burden of the testimony that other witnesses and I
gave before the two subcommittees is that this problem is a
real one; that, while it affects a relatively small number
of cases, they tend to be cases of unusual public importance;
that greater flexibility on the part of the intelligence
agencies, greater determination among federal prosecutors, and
greater imagination by trial judges could reduce the scope of
the problem; and that legislative prescription of new proce-
dures and alternatives could usefully accommodate the public
interest in vigorous criminal investigation and' enforcement
with the constitutional right to a fair trial.
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Rather than repeat my earlier testimony, I am instead,
annexing (as Appendix A and Appendix B) copies of my earlier
prepared statements. They explain why I believe a problem
exists, why it merits legislative attention, and what I
believe are some of the appropriate responses. Those state-
ments reflect my own experiences and observations and contain
my legal analysis of the issues.
In my testimony this morning, I shall focus on the two
bills that have emerged from the earlier deliberations. In
particular, I shall address what I perceive to be the principal
issues of policy and procedure raised by the bills and by the
limited differences between them. In general, while I regard
both bills as worthwhile, I prefer the general organization
and format of the Department of Justice bill, H.R. 4745. I
disagree with some of its features, however, including its
failure to include some provisions that are included in the
subcommittee bill, H.R. 4736.
General Overview: The Purpose and the Process
The theme of both bills is that the public interest in
legitimate law enforcement and the defendant's interest in a
fair trial may be reconciled by the early, careful, and
measured intervention of a trial judge. The basic approach
taken.. by. both bills is to ensure that the trial judge, upon
request, screens classified information that the defendant
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107
wishes to obtain in discovery or proposes to use in his de-
tense. The purposes of the screening are (1) to ensure that
the information is genuinely relevant to the issues in the
case and (2) to decide whether some alternative form or
? statement of the information will adequately satisfy the
defendant's interests without gratuitously compromising
properly classified data.
The procedures outlined in the legislation are hardly-
revolutionary, since they are modelled on existing provisions
of the Federal Rules of Criminal Procedure and the Federal
Rules of Evidence. What makes the legislation important is
that there has been uncertainty and inconsistency in the
application of those general provisions in "national security"
cases. The legislation is worthwhile, therefore, in express-
ing a clear congressional judgment that the federal courts
must give these issues careful and methodical treatment in
accordance with a clearly defined process.
In this context, I wish to note my agreement with the
observation of some. earlier witnesses that, wherever possible,
legislation of this sort should take the form of amendments to
the Federal Rules of Criminal Procedure and the Federal Rules
of Evidence.. There are. two persuasive reasons for using that
format.
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First, I regard it as desirable to avoid the construc-
tion of what would otherwise seem to be a special, separate
code of procedures for secrecy-related cases. I do not
believe that the pending bills may properly be criticized
as excesses, but Congress should be sensitive to the need to
avoid even the appearance of downgrading the constitutional
rights of persons suspected of violations that may be peculiar-
ly notorious or controversial. It is far better, in my
judgment, to integrate these proposed procedures into the
general body of federal procedural and evidentiary jurispru-
dence.
Second, insertion of these new procedures into the
Criminal Rules and the Rules of Evidence would make them
subject to the continuing oversight of the Supreme Court and
the Judicial Conference of the United States. See 18 U.S.C.
?? 3771, 3772; 28 U.S.C. S 2076. That oversight would permit
the judiciary, after due deliberation, to fashion modifications
that may be necessary over time to fine-tune the legislation.
Of course, any proposed amendments to the rules of procedure
and evidence would lie before Congress before taking effect.
In addition, Congress would retain its right to initiate
alterations independently at any time it is so inclined.
Limited Scope of Restriction on Disclosure
It is worth emphasizing that this legislation is not
intended'to-serve as an American equivalent of the British
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Official Secrets Act. It does not purport'to confer any
general power on the courts to muzzle private citizens or
the press in order to prohibit, them from disclosing classi-
fied information. The focus of the bills is simply on the
prospective disclosure of classified information by the
defendant "in connection with" a pending federal criminal
case. See S 102(a)(1) of H.R. 4736; S (5)(a) of H.R. 4745.
As a result, the bills would not add any further restric-
tions, beyond those already in force, that would prohibit
a suspect in an investigation from disclosing classified
information prior to indictment. Obviously, also, the bills
add no new provisions to guard against either espionage or
leaks.
Moreover, although both bills prohibit disclosures of
classified information "in any manner" in connection with a
pending prosecution, I do not understand the bills to control
what a defendant may say or write independently of the criminal
proceeding. That is, if a defendant possesses classified
information that he acquired prior to the discovery process in
the case, any restriction on his right to discuss it or write
about it would come only from other federal statutes, regula-
tions, and executive orders, to the extent applicable. As I
understand it, this legislation is designed solely to regulate
what a defendant and his counsel do about disclosures_in court
papers and in the courtroom and to superintend the use they
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make, of information that is provided to them as part of the
discovery process. I regard it as quite appropriate for
Congress and the courts to define the boundaries of the
proper use of classified information "in connection with"
federal trials.
Both bills, however, contain some ambiguity about the
scope of the restriction. The ban on disclosure "in any
manner" might be construed as restricting the defendant's
ability to discuss classified information with his counsel or
as restricting counsel's ability to discuss it with the
prosecutor or the court. Restrictions of that sort would not
be warranted. The bills should specify, however, that the
restrictions apply not only to the defendant personally but
also to his counsel. Thus, for example, ? 102(a)(1)'of the
Committee bill should be modified to provide that "neither the
defendant nor his counsel" may disclose or cause the disclosure
of the classified information "except to the attorney for the
United States or to the court in connection with proceedings
under S 102(b)-(f)."
The subcommittee bill, H.R. 4736, specifies that a number
of certifications and requests may be made only by "the
Attorney General". Dealing unambiguously with a question
similar to the one that led to the frustration of hundreds of
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111
criminal cases under the Supreme court's wiretapping-authoriza-
tion decisions a few years agog S 112 of the subcommittee
bill provides that the Attorney General's functions may be
delegated as far down as an Assistant Attorney General, but no
further. The Justice Department bill, by contrast, would
allow any federal prosecutor to make the judgments about
invoking these special procedures, reserving to the presiden-
tial appointees within the Justice Department only the function
of certifying that an interlocutory appeal is not taken for
purposes of delay. I support the subcommittee bill on this
issue.
The. procedure's and certifications that the subcommittee
bill would plate under the immediate supervision of the
Attorney General or his delegate are sufficiently important
and peremptory to justify the requirement of personal involve-
ment at least by the Assistant Attorney General. Although it
is a bit more cumbersome to obtain the approval of an Assistant
Attorney General, the cases to which these procedures may
apply are inherently sensitive and are likely, in any event,
to be conducted under the active supervision of the Criminal
Division in Washington.
J United States v. Giordano, 416 U.S. 505 (1974); United
States v. Chavez, 416 U.S. 562 (1974).
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Propriety and Scope of "In Camera" and "Ex Parte"
Proceedings
One of the most delicate. features of both bills is their
extensive provision for in camera -- secret -- proceedings.
Largely in response to the Supreme Court's decision a
few month ago in Gannett Company v. DePasguale, _ U.S.
61 L.Ed. 2d 608 (1979), in which the Court held that the
public and the press could be barred from a pretrial suppres-
sion hearing.in order to avoid prejudicial publicity, there
has been considerable furor about the dangers of "secret"
criminal proceedings. The Sixth Amendment expressly guaran-
tees to a person charged with a crime the "right to a speedy
and public trial." The Court held in Gannett that, at least
where the accused joins in a request for the closing of a
pretrial proceeding, the public interest in open judicial
proceedings does not prohibit a court from granting that
request.
Two things are notable about the Gannett decision.
First, the Court emphasized that it was dealing only with
pretrial proceedings related to the admissibility of evi-
dence and not with the actual trial of guilt or innocence.
Secondly, the Court emphasized the importance of the defen-'
dant's own consent to the in camera proceeding.
.The question raised by Gannett is whether Congress may
constitutionally establish a requirement that, when requested
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113
by the government, a court must conduct in camera pretrial or
ancillary procedures concerning the scope of discovery or the
admissibility of evidence. Although the matter is not wholly
free of doubt, it is my judgment that the Constitution permits
in camera when there is an important governmental interest in
doing so. The preservation of classified information against
needless disclosure surely constitutes a legitimate government-
al interest in the conduct of in camera proceedings. See
United States v. Nixon, 418 U.S. 683, 713-16.&. n.21 (1974);
United States v. Reynolds, 345 U.S. 1 (1953). Both bills
provide reasonable protection against the abuse of this
device.
While unusual, in camera pretrial proceedings are not
exceptional, even without the concurrence of the defendant.
As I have described in my earlier testimony (Appendix B, pp.
12-15), the Supreme Court and lower federal courts have
approved the use of in camera proceedings in handling classi-
fied information as well as in other settings. The Congress
has expressly provided for such proceedings in civil cases
under the Freedom of Information Act, including of course cases
concerning classified information. 5 U.S.C. ? 552(a)(4)(B)
and (b)(1). In the Nixon Tapes Case, supra, the Supreme Court
expressly authorized Judge Sirica to review the White House
tapes in camera to remove extraneous matter, including state
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secrets. United States v. Nixon, supra, 418 U.S. at 713-16 6
0.21. Last year, Congress added new Rule 412 to the Federal
Rules of Evidence, requiring an in camera hearing whenever a
defendant in a rape case seeks to introduce evidence of the
victims past sexual behavior.
A related question is whether the ordering of an in
camera hearing should be automatic, as the subcommittee bill
seems to provide whenever the Attorney General so requests.
See ?? 102(a)(2)(B), 102(b)(2)(B), ? 103(a), ? 109(b)). By
contrast, the Justice Department bill requires that it make a
preliminary showing that the information involved-is properly
classified. See ? 6(b). It is interesting that there has
been criticism of the Justice Department approach, even
though it gives more discretion to the trial judge. There is
some fear that the ex parte submission concerning the sensitiv-
ity of the information may prejudice the judge's ruling on its
relevance and on its producibility in its pristine form.
This is a hard'problem, but on balance I would endorse
the Justice Department approach. The risk of tainting
the trial judge seems small, especially when one realizes that
the judge is equally likely to be exposed to the government's
arguments about the delicacy of the information at the actual
hearing. There is no reason to believe that the defendant
will be unable to make whatever counter arguments are weighty
at that time. I am more concerned about allowing the govern-
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ment the power to trigger in camera proceedings automatically,
and I thus endorse the requirement that there must be some
preliminary showing to justify that course.
A related issue is the extent to which each bill per-
mits ex parte proceedings, that is, an in camera proceeding
in which only one party -- the government -- is fully partici-
pating. Most of the in camera proceedings would involve the
defendant and his counsel, in the sense that they would be.
physically present and would have access to the information at
issue in litigating about its disclosure. There are exceptions,
however.
For example,?under S 102(e) of the subcommittee bill, the
United States need only describe by generic category the
information that is of concern to it in a screening hearing if
the information has not previously been made available to the
defendant, such as during government employment. That means
that, to a considerable extent, the defendant must endeavor to
show the relevance of information without actually seeing the
information itself. I know that some witnesses have criticized
this approach, pointing out that the Supreme Court in cases
like Jencks v. United States, 353 U.S. 657, 659 (1957), and
Alderman v. United States, 394 U.S. 165, 183-86 (1969), has
held that the defendant is entitled to participate in the
determination of relevance.
These cases, however, do not require direct examination
of the sensitive information by the defendant and his counsel.
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There is abundant legislative and judicial'support upholding
the ability of trial judges to make analogous determinations
ex ap rte and the propriety of establishing that procedure in
selected settings. Congress expressly overruled the Jencks
decision in the so-called Jencks Act, 18 U.S.C. 5 3500. Under
5 3500(c), the trial court is now required to examine a prior
written statement by the government witness in camera -- and
ex ap rte -- to see whether the government is correct in -
arguing that some or all of the prior statement is irrelevant
to the witnesses's testimony. If so, the statement is to be
withheld or excised. The courts have regularly implemented
that legislatively established procedure over the last 20
years, exercising generally satisfactory judgment.
The Alderman approach, too, is distinguishable. The
Supreme Court in Alderman was assuming that the classified
material consisted of information obtained as the result of an
illegal search in violation of the defendant's constitutional
rights. Balancing the respective interests, the Court held
that the defendant should be entitled to access to the illegal-
ly acquired material in order to argue its relevance as a
taint upon his prosecution. Shortly thereafter, however, the
Court acknowledged that the trial judge may properly act ex
parte in passing upon related questions, like the defendant's
standing to object and the legality of the seizure, when
classified information is involved. See Giordano v. United
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States, 394 U.S. 310, 314 (1969) (Stewart,'J., concurring);.
Taglianetti v. United States, 394 U.S. 316, 317-18 (1969) (per
curiam).
There are other instances in which the judge is called
upon to make similar determinations without providing the
defendant direct access to the material in issue. For example,
under Title III of the 1968 wiretapping legislation, 18 U.S.C.
5 2518(10)(a), a trial judge passing upon a suppression ..
motion has the discretion whether to make some or all of the
intercepted communication available either to the defendant or
to his counsel, but he is not required to do so.
As illustrated by the Nixon Tapes Case, supra, a subpoena
under Rule 17(c) of the Federal Rules of Criminal Procedure,
seeking the production of potential evidence prior to trial,
may depend upon a generic showing of relevance and admissibil-
ity, even without access to the information. The judge may
rule upon those questions without providing access to the
documents themselves. See 418 U.S. at 715 n.21.
In addition, as I indicated above, the Freedom of Informa-
tion Act "contemplates that the courts will resolve fundamental
issues in contested cases on the basis of an in camera [and ex
partel examination of the relevant documents." Phillippi v.
Central Intelligence Agency, 549 F.2d 1009, 1112-13 (D.C. Cir.
1976).. The courts. have upheld the propriety of that procedure
when classified information is at issue. E.g., Environmental
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Protection Agency v. Mink, 410 U.S. 73 (1973); Fensterwald v.
Central Intelligence Agency, 443 F. Supp. 667 (D.D.C. 1977).
Under this analysis, as S 102(e) seems permissible. For
similar reasons, so does 5 109(b). Section 109(b) autho-
rizes an ex parte motion for a protective order that would
substitute summaries or admissions for classified data or that
would delete specified, irrelevant items. This procedure
would place some burden on the trial judge because he would
have to be familiar with the defendant's theory of the case.
That familiarity, however, should emerge from the pretrial
proceedings that are contemplated under each bill and from the
defendant's statement of need when he pursues documentary
discovery from the government.
If this Committee decides to authorize limited ex ay rte
submissions for these purposes, the approach taken by the
Justice Department bill in SS 4(b), 6(b), and 6(c)(1) seems to
me to be preferable. The Justice Department approach is more
comprehensive and it also enumerates in detail several alterna-
tive actions that the trial judge should consider taking.
Some witnesses have questioned the constitutionality and
fairness of permitting the court to decide that some other
form of the information sought by the defendant will adequately
protect,the defendant's interest. Their argument, which is
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quite plausible and deserves serious consideration, is that
the defendant and his lawyer are in the best position to make
the judgment about the effective use of relevant evidence.
The judge, they insist, is in no position to usurp that
function. I am persuaded, however, that a provision for
careful judicial inquiry into the, development of alternatives
that will satisfy a defendant's legitimate interests could be
fairly administered. As I shall explain in a moment, however,
the balance should be titted a bit further in the defendant's
direction.
Under S 4(b)(1) of the Department of Justice bill, the
court is to make original information available in discovery
if that disclosure "is necessary to enable the defendant to
prepare for trial." Similarly, under ? 6(c)(3), the original
information may be used at trial if the "use of the classified
information itself is necessary to afford the defendant a fair
trial." The subcommittee bill contains less specificity about
the alternatives or the grounds for their use, and makes the
availability of alternatives turn on a finding that "the
defendant's right to a fair trial will not be prejudiced
thereby." ? 103(a). Compare ? 106(b).
The assumption underlying the provisions in each bill
is that the defendant's legitimate interest in acquiring and
using classified information may often be fully satisfied in
some other way. I regard that assumption as generally sound.
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Where, for example, it may-be necessary or 'relevant for the
defendant to offer evidence to show that-he or someone else
had access to nuclear missile data, the government's admission
of that fact should be a sufficient substitute for the physical
production of the missile specifications themselves. It will
be up to the courts, of course, aided by arguments from the
defendant's counsel, to craft the alternatives in such a way
that they provide the defense with the full and equivalent-
measure of evidentiary support to which the defense is legiti-
mately entitled.
The constitutionality of this process seems to me beyond
question. The Supreme Court has already suggested in the
informer-privilege cases that some "sanctions" short of
outright dismissal may be appropriate where the government
elects to withhold the identity of an informant. See Appendix
B, p. 11. Under the Jencks Act, 18 U.S.C. S 3500(d), Congress
has provided that the government's refusal to produce for the
defendant a prior statement of a government witness will
ordinarily result only in the striking of that witness's
testimony.
Rule 16(d)(2) of the Federal Rules of Criminal Proce-
dure, specifies, in a similar vein, that if the government
refuses to permit particular discovery, the court may prohibit
it from introducing the specific item withheld or may enter
any other corrective order as the court "deems just under--the
circumstances."
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The basic test is that the sanction or alternative should
put the defendant in substantially the same position that he
would be in if he had actually obtained the information
sought. In an analogous context, the Supreme Court has
upheld the constitutionality of the "use immunity" statute, 18
U.S.C. ?S 6001-05, on the ground that its prohibition against
the use of compelled testimony in a criminal case offers a
reluctant witness substantially the same protection as that
guaranteed by the Fifth Amendment privilege against self
incrimination, even though there may be some other collateral
disadvantages. See Kastigar v. United States, 406 U.S.
441 (1972). That analysis seems fully applicable to provi-
sions like SS 4(a) and (b) and ? 6(c) of the Justice Depart-
ment bill and SS 103 and 105 of the subcommittee bill.
.I do suggest, however, that the standard contained in
both bills may be too lax or vague and may not provide suffi-
cient protection for the defense. As drafted, the bills
require the court to withhold classified information from the
defendant, upon the government's request, unless it would be
"necessary" for the defendant to have it, as provided in the
Justice Department bill (S 4(b)(1) and S 6(c)(3)), or unless
its non-disclosure would "prejudice" the defendant's right to
a fair trial, (as in ? 103(a) of the subcommittee bill). I
suggest, instead, that.the use of alternatives be made permis-
sible "unless the court finds that no alternative will provide
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the defendant with substantially the same ability to prepare
for trial or to make his defense as would the disclosure of
the specific classified information."
Section 107 of the subcommittee bill contains a provision
for reciprocal disclosure by the government whenever the
defendant has had to specify the evidence he proposes to
use at trial and the court has substantially upheld his right
to use either that evidence or an adequate substitute for it.
The Justice Department bill contains no similar guarantee.
Indeed, Assistant'Attorney General Heymann actively opposes
that provision.
In my view, the subcommittee's guarantee of reciprocity
is fully warranted. The Supreme Court has emphasized that
reciprocal disclosure is a necessary ingredient in any scheme
that requires pretrial disclosure of defense evidence or
defense strategy. Compare Wardius v. Oregon, 412 U.S. 470
(1973), with Williams v. Florida, 399 U.S. 78 (1979).
Each of these two bills requires the defendant to provide
the government with substantial information about his trial
strategy. If the court upholds the legal soundness of that
strategy, it is only fair to insist that the government
disclose prior to trial its proposed rebuttal evidence.. Since
the government will have advance notice of some of the evidence
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the defense plans to use, I am satisfied that even-handedness
requires equivalent disclosure by the United States..'
Moreover, I see no particular prejudice to the govern-
ment's interest. The reciprocity provision simply requires
advance disclosure of information that the government plans to
produce at trial. To the extent that the information consists
of some classified elements, the government may resort to
the procedures established by these bills to safeguard against
improvident disclosure of specific data.
Witnesses have sharply divided over the desirability
of S 10 of the Justice Department bill, the proposal to amend
the Jencks Act to insert a new 5 3500(c). The new provision
would permit the court to excise from the prior written state-
1 Analogous rules are, admittedly, not consistent on this
point. Rule 12.1 of the Federal Rules of Criminal Procedure
does require reciprocal disclosure by the government in
response to the defendant's duty to give advance notice of the
witnesses he proposes to call in support of an alibi defense.
Rule 412 of the Federal Rules of Evidence, added by Congress
in 1978, however, requires the defendant in a rape case to
demonstrate prior to trial the relevance and importance of
proposed evidence about the victim's prior sexual behavior.
The Rule makes no provision for the government to give pre-trial
notice of its rebuttal evidence.
Rule 12.2 of the Federal Rules of Criminal Procedure,
requiring advance notice of an insanity defense, contains no
provision for reciprocity, but that omission is meaningless.
The Rule does not compel the defendant to disclose anything
about the defense, even the identity of his expert witnesses,
and.thius reciprocity is not an apt concept.
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ment of a government witnesses not only ifrelevant classified
material -- which can be deleted under the present statute but also to excise relevant classified material that is
"consistent with the witness' testimony".
The Justice Department offers,a plausible explanation for
this change. Critics of it question its fairness and its
feasibility. They suggest that even material that is not
flatly contradictory in an earlier statement may be useful in
impeaching a witness. For this truism they cite the Jencks
decision, 356 U.S. at 667-68, where the Supreme Court noted
that even the arrangement of facts in a different order or a
contrast in emphasis may be useful in testing credibility.
I have little doubt that, as a constitutional matter,
Congress may adopt the amendment sought by the Department
of Justice. Marginal utility in cross examination is not
constitutionally protected under either the Due Process Clause
of the Fifth Amendment or the Compulsory Process Clause
of the Sixth Amendment. Congress has adopted or approved a
number of evidentiary rules, including the Jencks Act itself
and Rules 403 and 412 of the Federal Rules of Evidence, that
restrict a party's use of marginally relevant evidence.
The need for the amendment, however, may be overstated,
since the interests that the Justice Department wishes to
protect may secure adequate protection under the other provi-
sion of the two bills. Those provisions would allow the court
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to screen out detailed information that would not be necessary
or helpful to the defense.
Perhaps a compromise is in order. There might be less
ground to object to the Justice Department proposal if the
adverb "fully" is inserted on page 13, line! 2 of H.R. 4745,
thus permitting the trial judge to excise a portion of the
prior statement only when he finds, after hearing the witness
testify and after examining the prior statement, that the-
prior statement is "fully consistent" with the witness's
testimony.
Congressional Oversight of Prosecutorial Discretion
Title II of the subcommittee bill would require the
Attorney General to promulgate guidelines specifying the
factors to be used in deciding whether to prosecute federal
violations where there is a possibility that classified
information will be disclosed. That bill would also require
that federal prosecutors prepare detailed memoranda expressing
the reasons for a decision not to prosecute based on those
grounds. Those memoranda would have to be reported to the
oversight committees of both Houses.
I question the utility of the requirement in S 201 of
H.R. 4736 that the Attorney General issue guidelines governing
the exercise of prosecutorial discretion in these'cases. In
doing so, I know that I am out of step not only with the
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assumption made in the subcommittee draft but also with the
recent recommendation of the House Government Operatons
Committee, which recommended that the existing Justice Depart-
ment memorandum laying out the process for making these
decisions should be replaced by more formal, permanent regula-
tions.." Nevertheless, I suggest that an attempt to enume-
rate these factors is bound to be so vague as to be susceptible
to any interpretation or application that circumstances may
warrant. It is not that I find S 201 objectionable; just that
I regard it as pointless.
The real issue, it seems to me, is one that is not
confronted by either bill. The legislation should clearly fix
the responsibility for deciding within the Executive Branch
whether to prosecute cases implicating national security
information. As I explained in my earlier testimony (Appendix
B, pp. 18 - 20), the clash between the responsibilities of the
Attorney General and those of the Director of Central Intelli-
gence makes this area somewhat murky. There appears to be a
modus vivendi today between Attorney General Civiletti and
Admiral Turner, under which the Attorney General is guaranteed
full acess to intelligence files in making the decision that
properly belongs to him. I submit, however, that it would be
J See House Committee on Gov't Operations,.Justice Depart-
ment Handling of Cases Involving Classified Data and Claims
of National Security, H. Rept. No. 96-280, 96th Cong., 1st Sess.
at 22 (1979).
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worthwhile for Congress to make the policy determination that
the Attorney General is entitled to unrestricted access to
national security information, in connection with his funtions
and that, subject to presidential control, he is ultimately
responsible for deciding whether the public interest in
prosecuting a federal crime outweighs the ;public interest in
protecting a state secret. That type of statutory provision
seems to me more useful than S 201 of the subcommittee bill.
Section 202 requires the preparation of detailed memoran-
da explaining decisions not to prosecute and demands that the
Justice Department routinely forward those memoranda to the
congressional oversight committee. I support the Justice
Department's objections to these requirements.
Let me say at the outset that I support the principle of
congressional oversight. That is not at issue. Even with a
statutory directive, it is virtually certain, as a practical
matter, that Justice Department files will include a "prosecu-
tion memorandum" in sensitive cases of this sort. Hence, the
record will be there for examination when necessary. It is
also certain, though, that few cases are likely to involve
seriously questionable judgments that will deserve congres-
sional attention.
Accordingly, it seems to me that due respect for the
separation.of powers and for the independence of the Execu-
tive's,prosecution function counsels in favor of minimal
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intrusion into Justice Department deliberations and files.
"ere too, a compromise solution seems best designed to recon-
cile legitimate but conflicting interests. At most, legisla-
tion ought to require the Attorney General to report to the
two oversight committees the name of the prospective defendant
and the offense or offenses for which he was under investiga-
tion. If either committee believes that it is worthwhile to
pursue a particular matter, the inquiry can be handled on_a
more discrete and sharply focused basis.
Several technical or structural questions may also merit
comment. For instance, earlier witnesses have suggested that
the procedure for obtaining a protective order under 5 4(b) of
the Justice Department bill should track more closely the
requirements of Rule 16(b)(1) of the Federal Rules of Criminal
Procedure, the provision that generally authorizes the trial
judge to regulate discovery in criminal cases. I concur with
the proposal to conform the procedures under the bill with
those that are generally applicable, including the requirement
of a written submission by the government that may be maintain-
ed under seal for possible appellate review.
Both ? 102(f) of the subcommittee bill and ? 8(d) of the
Justice Department bill contain provisions that I find quite
ambiguous. In providing the government with an opportunity to
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object to a line of questioning of a witness when that line
has not previously been screened, each provision directs the
court to "take such ('suitable'; H.R. 4745] action to determine
whether the response is admissible as will safeguard against
the ['compromise'; H.R. 4745] ['disclosure'; H.R. 4736] of any
classified information." Stated that way, these provisions on
their face suggest that the court is to gag the witness
permanently if his testimony would reveal classified.informa-
tion. The provisions appear to make the prevention of disclo-
sure the overriding duty of the trial judge. That is certainly
not what is intended. Rather, the trial judge should be
required to protect against disclosure until admissibility and
alternatives are screened in accordance with the other sections
of each bill.
Both bills provide that the government may take interlocu-
tory appeals from disclosure orders that may threaten its
ability to proceed with a case. An interlocutory appeal
by the government has ample statutory precedent in other
situations, and I support this approach. Certain ambiguities,
however, should be.clarified.
Both bills provide for the trial court to defer or
adjourn the trial until the appeal is "decided" or "resolved".
See S 108(b)(1), H.R. 4736; ? 7(b), B.R. 4745. Lest there
be any uncertainty that might magnify the delay and interfere
with the interest of both the public and the accused in a
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speedy trial, legislation on this subject should specify that
a petition for review by the Supreme Court will not lie at
that interlocutory stage.
Moreover, both bills suggest that, in meeting the tight
timetable for disposing of an appeal taken during trial, the
appellate court may dispense with the issuance of a written
opinion. Since there is no requirement at present that
appellate courts file written opinions, and since they often
dispense with them when circumstances seem to warrant, a
legislative suggestion to that effect seems both gratuitous
and patronizing.
Section 109(a) of the subcommittee bill directs that,
upon motion of the United States, "the court shall issue an
order to protect against the disclosure of any classified
information" made available in discovery. That formulation
seems unintentionally too sweeping. What I believe the
subcommittee intended is to restrict the disclosure of classi-
fied information that is made available to the defendant in
discovery except to the extent that disclosure is otherwise
authorized in connection with the proceedings and in accordance
with the statutory screening procedures. .A change that makes
that intent clear would be useful.
Finally S 8 of the Justice Department bill would modify
several provisions of the Federal Rules of Evidence concerning
the admissibility of duplicates, summaries, or excerpts of
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writings. These changes are within the power of Congress and
leave sufficient discretion to the trial judge to avoid
unfairness to the defendant.
The bills pending before the Subcommittee invite it to
confront boldly a number of complex and vexing problems. The
enterprise is well worth the effort. With the adjustments
that I have proposed, either of these two bills -- or, I hope,
a restructured synthesis of the two of them -- would make a
major contribution to the resolution of the "disclosure or
dismiss" dilemma.
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132
Statement Of
Philip A. Lacovara*-
Before the
United States House of Representatives
Permanent Select Committee On Intelligence
Subcommittee On Legislation
"Protection And Use Of National
Security Information"
.I am pleased to be back before this Subcommittee to offer
some thoughts about another group of problems that you are now
considering. When I testified before this Subcommittee in the
last Congress on various proposals for a Foreign Intelligence
Surveillance Act, which has now been enacted into law, the
members of the Subcommittee were very gracious in listening to
my comments. Against that backdrop, I am especially pleased
to have been invited back.
The Two Faces of the Problem: Disclosure in the Field
and Disclosure En--t-Fe Courtroom
*/ Partner, Hughes Hubbard & Reed, Washington, D.C.
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legitimate national security information, the Subcommittee
must confront two distinct challenges. One is to decide what
information should be subject to statutory restrictions
against disclosure, especially by unauthorized or extra-
legal means. The other is to develop a system of adjudication
that reduces the danger of unnecessarily compromising national
security information in litigation. The two faces of'the
problem are quite different.
The first branch of the problem involves the deliberate,
surreptitious disclosure of what have been variously termed
"state secrets", "classified information", "restricted data",
and so forth. For the sake of conformity, I shall refer to
this information as "national security information." In this
phase of the problem, the objective of the person disclosing
the information is to achieve its dissemination, and it is to
be distinguished from the second situation, which I shall
discuss in.a few moments, where the disclosure of national
security information is incidental to some other proceeding,
such as a civil or a criminal trial.
In the first category fall two distinguishable types of
conduct: deliberate espionage and the official "leak". In
coping with either espionage or with the leak, the first issue
that Congress must address is the definition of information
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thatshould be subject to a substantive restriction against
disclosure.
The Subcommittee is well aware of the array of objec-
tions to the current espionage statutes, which are quite
cloudy in defining the contours of the information that is
to be protected. In addition, those statutes are utterly
ill-suited to the phenomenon of the official "leak." Al-
though the selective leaking of the otherwise secret gover-
nment information is as old as our Republic -- and is probably
as old as secrecy itself -- Congress has not really tried'to
come to grips with legislative restrictions on such conduct.
-Pending before the Subcommittee is an almost dizzying
variety of suggestions for the definition of legitimate
"national security information" that should be protected
against the spy and against the leaker. My own experience
with classified information, as with other information argu-
ably subject to some governmental privilege, is that govern-
ment officials tend to err far on the side of secrecy when
they come to designating information they want to withhold.
Often, it is difficult to discern the basis for a classifica-
tion. I suggest that the balance should be legislatively
I acknowledge that my first-hand experience pre-dates the
new executive order governing the classification process, but
I would be surprised to learn that human nature has changed
dramatically.
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tipped in the other direction'-- much as the Freedom of
'Information Act now does -- and the presumption ought to be
that information is disclosable unless there is an articu-
lable basis for shielding it.
I would urge the Subcommittee, if it decides to fashion
legislation on this subject, to propose a narrow formula-
tion, rather than one that is open-ended. Such a formula
could then be tested against any concrete examples that may
be furnished by the defense, foreign policy, and intelligence-
communities of other types of information that must be kept se-
cret. At the drafting stage, the burden of persuasion should
be placed on those experts to produce real instances and sub-
stantial reasons showing why more expansive coverage should
be given in defining protected "national security information."
The Subcommittee should also be sensitive -- as I know it
will be -- to the deep policy implications of enacting anything
remotely resembling an Official Secrets Act, a law that makes
mere disclosure of official information a crime. There is a
natural tendency to reach for that deceptively alluring solu-
tion to a complex and important problem. This country, how-
ever, has had several chapters in its history in which a
desire for security was allowed to submerge our concern for
personal liberties of speech, press,, and travel. Those epi-
sodes are now regarded with shame, and must not be repeated.
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National security is, of course, a legitimate and indeed a.
compelling goal of any government,, but Congress must not, in
the course of striving for security, loose sight of the nature
of the society in which we want to be secure. It bears re-
peating that the Preamble to the Constitution says that one
of the goals of the Union is to "secure the Blessings of
Liberty to ourselves and our Posterity". What the Congress
should be most concerned about securing, therefore, when-there
is a tension between freedom and security, is our personal
liberties. There are great dangers to any proposal that seeks
to avoid difficult questions of subjective intent and probable
effect by making them wholly irrelevant.
The shades of intent underlying disclosures of national
security information are best illustrated in the "leak"
context. The effort to regulate "leaking" must necessarily be
a vexing one. First, as the Committee may fairly assume from
my position in the Nixon Tapes Case,?/ I am instinctively
skeptical about governmental claims to secrecy, and I believe
that they should be given the narrowest possible cabin. The
First Amendment' reflects the two underlying postulates of our
democratic society: that the people -- not the government are ultimately responsible for the course of our society, and
that, in order to make informed choices, the people must have
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137
adequate current access to pertinent information. As St. John
out it in a somewhat eschatological context: "And ye shall
know the truth, and the truth shall make you free."Y
Second, the use of the term "leak" tends to oversimplify
? the range of motives and consequences that may be involved.
The leak is sometimes used as a technique of government
? policy, sometimes to inform the public "off-the-record".
Often, however, it is used to provide a selective view of a
message the government wants to convey. At the other end of
the spectrum, a leak may come from a disgruntled government
employee who concludes that only public knowledge will divert
the government from-a policy that:he feels - rightly or
wrongly -- is folly.
One mechanism for reconciling some of these divergent
interests is to provide a procedure by which a person may
obtain prompt administrative review of a classification that
would otherwise restrict disclosure. The existence of that
type of safety valve would, I believe, fairly permit Congress
to be somewhat more embracing in its definition of the cate-
gories of national security information.
I have only one suggestion to make about that definition.
Many of the reasons for public disclosure of government infor-
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mation apply to policy-related information, not to details.
Thus, for example, the public might have a legitimate right to
know that the Defense Department is developing a new weapons
system like a neutron bomb,in order to assert an intelligent
judgment about the non-technical implications of that course.
But there would be little justification for concluding that
the scientific and engineering plans for such a device should
similarly be disclosable. This kind of distinction might also
put into separate catgegories the disclosure of the general
existence of intelligence activities abroad, on the one hand,
and disclosure of the names of active intelligence operatives
or sources in particular countries, on the other. The distinc-
tion may be easier to state in the abstract than it would be
to apply in practice, but I suggest it as a starting point in
determining what should be secret and what should not be.
B. To Proceed, or Not to Proceed? That is the
Question.
The other major facet of the problem'before the'Subcommit-
tee involves the disclosure of national security information
in the course of legal proceedings. Here, too, the general
issue can be subdivided into two distinct situations. One is
where the government itself must use national security informa-
tion in the course of a proceeding in order to prove a material
facts 'The-other,, sometimes called "graymail," involves the
threat or demand by the other party to the litigation --
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139
often, but not always, a defendant in a criminal case -- to
have national security information disclosed in the course of
the proceedings. In either situation, the government may be
confronted with the "disclose or dismiss" dilemma in which the
government must either compromise national security by disclos-
ing sensitive information or else forego the effort to vindi-
cate the public's legal rights.
In a statement I submitted in March 1978 to the Subccommit-
tee on Secrecy and Disclosure of the Senate Select Committee
on Intelligence, I addressed some of these questions at
length and made a number of suggestions for avoiding or
resolving that dilemma. Some of my recommendations involved.
steps that might be taken by the Executive Branch, with the
cooperation of the courts. Others might require a legislative
action. I was.pleased that, when the Senate subcommittee
released its'report, it endorsed some of the suggestions that
other witnesses and I made for more imaginative and aggressive
action within the Executive Branch.5' I shall not repeat
that testimony. Instead, I am submitting a copy of my prepared
"The Use of Classified Information in Litigation," Hear-
ings before Senate Select Comm. on Intel comm. on
Secrecy and Disclosure, 95t Cong., 2d Sess. 53-8 ( 978).
5/ "National Security Secrets and the Administration of Jus-
tice", Report of Senate Select Comm. on Intelligence, Subcomm.
on Secrecy-and Disclosure, 95th Cong., 2d Sess. 26-32 (1978).
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statement as an addendum to my testimony this morning.
Several additional points, however, are in order. In my
statement last March, I commented that the Department of Jus-
tice had not taken the available steps to avoid the dilemma
that had apparently been the basis for the Department's
failure to proceed with a number of otherwise justifiable
criminal prosecutions. Since that time, the reins of the
Criminal Division have been taken over by my former colleague
in the Special Prosecutor's Office, Philip B. Heymann, and I
have noted a dramatic shift of position. Assistant Attorney
General Heymann is thoughtful, sensitive, and knowledgeable,
and is~concerned with reconciling .~civil liberties and criminal
justice. His experience with the problems of national security
information in litigation springs in large part from the same
cases as does mine, and he is actively exploring realistic
approaches to the problems.
The Subcommittee is no doubt aware that the Department of
Justice has recently been taking steps, with varying degrees
of success, to obtain court orders -- in the form of protective
orders -- that will protect the important constitutional rights
of the accussed while at the same time protecting the govern-
ment's legitimate interests in national security information.
Useful protective orders were entered in the CIA spy satellite
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espionage trial,-E/ in the FBI-break-in case,/ and the
'Humphrey/Truong espionage case.?/
In the ITT perjury case,-2/ the district judge ini-
tially granted a protective order prohibiting the defendant
or his lawyer from disclosing, without prior court approval,
the information contained in classified CIA documents he was
allowed to review as part of pretrial discovery. But the
judge has recently denied a?further protective order that
would establish a procedure for in camera screening of any
classified information the defendant might want to disclose
at trial. The government petitioned the United States Court
of Appeals for the District of Columbia Circuit -to issue a
writ of supervisory mandamus directing the district judge to
establish fair and orderly procedures for this purpose. The
Court*of Appeals, however, denied this petition on January 26,
1978.10/ The government's briefs in the court of appeals
6/ United States V. Kampiles (N.D. Ind. Crim. No. HCR
78-77).
7/ United states v. Gray, et al. (D.D.C. Crim. No. 78-
000179).
8/ United States v. Humphrey, et al. (E.D. Va. Crim. No.
78-25-A.).
9/ United States v. Berrellez (D.D.C. Crim. No. 78-00120).
10/ In Re United States (D.C. Cir. No. 78-2158). The Court
of Appeals .held that the protective order was not properly
reviewable by the extraordinary mandamus procedure.
(footnote continued on following page)
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142
provide an excellent compilation of the case law supporting
the constitutionality of the proposed screening procedure.
Review of the various protective orders that have been
entered or sought will show that there are some common features,
like a limitation on further dissemination of classified in-
formation obtained in discovery, but there are also a number
of variables. In order to standardize the proceedings in
which national security information may have to be used.. it
would be worthwhile for Congress to enact formal standards and
procedures, for cases of this type.11' While Congress cannot
eliminate the constitutional questions that may be raised, I
believe the courts will accord substantial deference to the
choices Congress makes, if it develops a caiefuf and balanced
procedural scheme.
-A comprehensive approach to this issue would include a
number of features. At the outset, Congress should designate
the official who, 'short of the President, will have the
(footnote continued from previous page)
One of the defendants in the FBI break-in case (United
States v. Gra ) has recently petitioned the Court of Appeals
Tor-similar mandamus review of the protective order in that
case.
11 Indeed, the Court of Appeals' recent refusal to overturn
y mandamus the district court's denial of a further protective
order in Berrellez -- thereby effectively denying the government
the opportunity to appeal the district court's decision --
underscores the need for congressional action laying down
reasonably clear guidelines for district courts and litigants
in this area.
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primary authority within the Executive Branch to resolve the
disclose-or-dismiss dilemma if it becomes necessary to address
it. I believe.the Attorney General is the proper official to
make that judgment because his responsibilities to enforce the
law comprehend the more specific statutory obligations given
to other federal officials, like the Director of Central
Intelligence.
In addition, Congress should reinforce the Attorney
General's right to access to any information in the govern-
ment's possession that he considers necessary to the discharge
of his responsibilities. He should be required, however, to
consult with the affected agencies with a view toward achieving
a fair prosecution with a minimum adverse impact on national
security concerns. This requirement should be axiomatic, but
there is no reason not to guarantee the national security
community this opportunity.i2/
The Federal Rules of Civil Procedure and Criminal Proce-
dure can be amended to require pretrial notice of an intent to
use national security information, either by the prosecution
or by the defense, so that adequate protective conditions may
12/ The problem of reconciling a criminal prosecution with
national security concerns is not new. See, for example,.
Anders, The Rosenberg Case Revisited: The Greenglass Testimony
And The Protection Of Atomic secrets, 1978 American Historical
Rev ew, 388.
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be established and screening of the material can be conducted.
-Building on the existing statutory provisions for government
appeals from suppression orders,13 Congress should allow
the government to appeal from a disclosure order upon certifi-
cation by the Attorney General that the disclosure might cause
grave injury to the national security.14/
The Congress should also consider establishing special
procedures when national security information must be used
at a trial. As explained in my Senate statement last year,
there are at least certain kinds of proceedings that may be
conducted in camera.15/ To the extent that the constitutional
right to a public trial may give either the_defendant or the
public the right to open proceedings,16 it might be possi-
14/ The need for a statutory appeal process for such orders
-- and the inadequacy of mandamus as a means of appellate
review in these cases -- is highlighted by the District of
Columbia Circuit's denial of the Government's mandamus peti-
tion in Berrellez. See note 10, supra.
15/ See Hearings, supra note 4, at 57-58.
16/ The Supreme Court now has before it the constitutionality
of a court order excluding the public and the press from cer-
tain portions of a criminal proceeding, where there was a con-
cern about generating prejudicial pre-trial publicity. See,
Gannett Co. v. DePasquale (Sup. Ct. No. 77-1301) (argued Nov.
7, 1978; see 47 U.S.L.W. 3330). For quite different views of
this problem, compare Gannett Co., Inc. v. DePas uale, 43 N.Y.
2d 370, 401 N.Y.S. 2d 756, 372 N.E. 2d 544 978), cert.
granted, U.S.L'.W. 3679 (U.S. May 1, 1978;) (No. 77-1301), with
United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978).
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ble to provide that the documentary evidence be maintained
under seal and shown only to the jury. It might also be
appropriate to permit a brief delay before the commencement of
a trial in order to allow the government to determine whether
it has cause to believe that any of the prospective jurors may
not be able to safeguard national security information that
comes into their possession in the course of a trial. Those
jurors would then be subject to challenge. It also seems to
me well within the legitimate powers of a court to place
counsel and the jury under an injunction of secrecy, with care
being taken to impose the minimum restraint necessary to
protect the most sensitive national security information.
Finally, Congress should consider establishing a rule of
evidence to cope with national security information. To the
extent the information is relevant, a number of options --
subject to court supervision -- seem feasible. One would be
to permit the government to produce a concession or stipulation
about the-basic substance of the information without actually
producing the information itself. In many instances, a
description of -the nature of the material, without letting out
its specifics, may sufficiently cover the point that a defendant
may be entitled to make.
As a further alternative, Congress could draw upon the
"missing witness" instruction as a parallel, and could autho-
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rize the court to instruct the jury to infer from the failure
to produce information that the information would tend to
establish the fact asserted by the defendant. Or, going one
step beyond that instruction, the jury might be told that it
must take as established a particular proposition advanced by
the defendant. Rule 37(b) of the Federal Rules of Civil
Procedure suggests a number of alternative sanctions for
failure to make discovery in a civil case, and there is no
compelling reason why that approach may not be borrowed in a
criminal case as well.
Furthermore, Congress may develop the point made by Rule
403 of the Federal Rules of Evidence, which-permits relevant
evidence to be excluded if its probative value is 'substan-
tially outweighed' by certain other considerations. Congress
could consider. modifying that rule of evidence to provide that
the risk of grave injury to the national security is one of
those considerations.17/
In the last year alone, we have witnessed a number of
federal cases in which national security information
played, to one degree or another, a part in the proceedings.
We can only surmise that there are other cases that should
have been brought but were not because of the apparent security
risks in attempting to,proceed. With this recent experience
17/ Compare Davis v. Alaska, 415 D.S. 308 (1974).
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in mind, there seems to be ample justification for this
,Subcommittee to develop a comprehensive legislative package
that will deal with the issues I have addressed.
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STATEMENT OF PHILIP A. LACOVARA*/
BEFORE THE
SUBCOMMITTEE ON SECRECY AND bISCLOSURE
OF THE
SENATE SELECT COMMITTEE ON INTELLIGENCE
"Investigating and Prosecuting Federal
Offenses When National Security Information
May Be Involved"
I am appearing this morning at the Subcommittee's .
invitation to offer my views on the problems that are en-
countered in investigating and piosecuting.criminal cases
involving-national security information. In commenting on
these problems, I draw on my experience in the Department of
Justice, where I served as Deputy Solicitor General in charge
of the government's criminal and internal security cases
before the Supreme Court, and as Counsel to Watergate Special
Prosecutors Archibald Cox and Leon Jaworski. Several of the
investigations undertaken by the Special Prosecutor's Office,
especially the investigation of the break-in by several of the
White House "Plumbers" at the office of Daniel Ellsberg's
psychiatrist, touched upon these problems.
Partner, Hughes Hubbard & Reed, Washington, D. C.
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1. Relationship Between National Security and
Prosecutorial Discretion:
The prosecution of a federal offense invariably involves
a continuing series of discretionary judgments, beginning with
the decision whether to open an investigation and extending
through the decision how to deliver the final summation
at the trial. 'At each stage, concern about "national security"
considerations may affect the judgments that are made. I wish
to emphasize at the outset that, although many abuses have
been committed in this country in the name of "national
security" -- over a period going back more than thirty years
-- the goal of protecting national security is certainly legi-
timate. Accordingly, it is no more objectionable for any
federal prosecutor, ranging from an Assistant United States
Attorney to the Attorney General, to weigh genuine national
security interests than it is for a prosecutor to evaluate the
countless other variables that inform the exercise of prose-
cutorial discretion.
There are two distinct types of situations in which
national security. factors may complicate a federal criminal
case. The first involves the risk that the very initiation of
an investigation or a prosecution will compromise some national
secret or intelligence method. For example, the opening of an
investigation may destroy the cover of an undercover operative,
or may confirm the importance of purloined information. These
are inherent risks and are beyond the scope of my remarks.
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150
The second type of impact can come from the disclosure
of classified information that might be required at a trial.
If the information is so sensitive that the damage to the
'national interest would exceed the public interest in prose-
cuting the offense, the prosecution would have to be aborted.
Apparently, there have been instances in which anticipated
disclosures at 'a trial were so grave that even a full inves-
tigation of an alleged offense was deemed pointless.'
2. Existence of Alternatives to "Disclose-or-
Dismiss" Dilemma.
My objective today is to suggest that the appearance
of a national security feature in a federal investigation or
prosecution should not be regarded as a "stop" sign, but
rather as simply a flashing."caution" warning. If the De-
partment of Justice proceeds with a little sensitivity and a
modicum of imagination, the involvement of some national
security component need.not erect an impassable roadblock to
the pursuit of a federal offense that otherwise merits in-
vestigation and prosecution. Before any final judgment is
made that national security imperatives outweigh the public
interest in enforcing the criminal law, a number of alter-
natives can be explored to-avoid confronting that ultimate
dilemma.
Congress has the responsibility, I, submit, to devise
procedures and standards that will reduce the occasions on
which officials of the Executive Branch must address the
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dilemma. I have the sense that the government may be aborting
cases prematurely or unnecessarily because of a failure to
press the alternatives to their fullest, as we did, for
example, in the Special Prosecutor's office in the Ellsberg
break-in prosecution, where-defense efforts to use "national
security" threats to stymie the case were beaten in the
courts. In addition, when the close calls have to be made, it
is important to identify the official with the responsibility
to weigh the alternatives, and to equip him with some policy
priorities. On each of these issues, the government's present
practice may be deficient, and there may be room for con-
gressional action.
The need to introduce national security information as
evidence in a criminal trial, and hence the necessity of
disclosing it to unauthorized persons, most obviously arises
in espionage. prosecutions for illegal transmission or disclo-.
sure of classified information. As long as the basic elements
of the offense defined by Congress include the element of
injury to national security, the government must place evidence
before the jury to establish that element. In addition, the
defendant is entitled to place rebuttal evidence before the
jury. There may be no practical alternative to production of
classified evidence in an espionage case, unless Congress is
prepared to take the controversial step of enacting an official
.Secrets Act under.which the fact of classification is critical,
not the underlying nature of the information.
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Similar problems can arise in numerous contexts other
than espionage cases, and are easier to'deal with in those
?other contexts. The most recent example receiving widespread
public attention. was the plea bargain arranged with former
Director of Central Intelligence Richard Helms. In that case,
Helms was under investigation for possible perjury committed
in congressional testimony about covert CIA operations abroad.
The Justice Department accepted his plea of nolo contendere to
the lesser offense of refusing to testify candidly before a
congressional committee, explaining: "the trial of [his] case
would involve tremendous costs to the United States and might
jeopardize national secrets."
In those criminal cases that require disclosure of
classified information, the prosecutor is faced with the. very
difficult choice either to drop the case or jeopardize, to a
greater or lesser extent, American national security. As the.
Congress develops tighter legal restrictions on our intelligence
agencies, cases presenting this dilemma are likely to occur
with increasing frequency.
Based upon my experience, the dilemma is often a false
one, because on close examination much or most classified
information is overclassifigd. Thus, its disclosure at a
trial, if necessary, would not present truly grave risks
of jeopardizing our military security. The intelligence
community resolutely opposes any public disclosure of classi-
fied information, and that attitude is understandable because
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153
the mission of those agencies is to obtain and maintain
secrets. While I hardly mean to deny the general propriety of
protecting the secrecy of defense information, I do suggest
that prosecutors should be skeptical about the adverse con-
sequences that would alleq ly flow from the disclosure of the
limited amount of classified information that might be necessary
to sustain a major prosecution.
The main thrust of my statement, however, is that in many
instances it may not even be necessary to reach the 'disclose-
or-dismiss' dilemma. I believe that various substantive and
procedural mechanisms can be utilized to pursue otherwise
appropriate prosecutions without jeopardizing the national
security.. I would like to devote the rest of my statement to
discussion of these possible mechanisms.
There are two basic approaches to avoidance of the
dilemma: (A) reliance on substantive doctrines of law to
obviate the need to produce classified data at a trial, and
(B) use of special' procedures to resolve disputed issues
without public disclosure of any national security information
that must be considered. Some of these options are currently
.available; others would take legislative action. I cannot
emphasize too strongly, however, that the decision to restrict
or abort an otherwise meritorious prosecution should rarely,
if ever, be made until all substantive and procedural alter-
natives are exhausted, and this may involve exercise of the
government's right to appeal from adverse decisions made
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initially by the trial judge. See 18 U.S.C. ? 3731.
A. Avoidance of Dilemma By Reliance on
Principles of Substantive Law
On the substantive level,-the key issue is one of rele-
vancy. A purported risk of disclosure of sensitive informa-
tion can be avoided if the information is not truly relevant
to any material issue in the trial. In that event, the
government need not produce it, and can counter a defendant's
in terrorem threat to introduce it by insisting that the
information be excluded from evidence. See Rules 401 and 402,
Federal Rules of Evidence. The government can insist, for
example, on a precise interpretation of the relevancy of the
sensitive information to the trial. This was the approach
taken by the Watergate Special Prosecutor in United States v.
Ehrlichman, 376 F. Supp. 29 (D.D.C. 1974), aff'd, 546 F.2d 910.
(D.C. Cir. 1976), cert. denied, 429 U.S. 1120 (1977), the
prosecution resulting from the break-in at the office of
Daniel Ellsberg's-psychiatrist.
Prior to the return of the indictment in that case, some
defense counsel warned us that they would force into the
public trial record the most highly classified defense in-
formation. Thus, they argued, an indictment would be aimless
because we would certainly have to abandon the prosecution
rather than permit the disclosure of the data. It was a
worthwhile strategy, but we concluded we were not faced with
any imminent dilemma. We satisfied ourselves that an indict-
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ment was otherwise appropriate and that there were alternatives
that could properly neutralize the defense strategy.
After the indictment was returned, the defendants did
-in fact demand the production of highly classified files,
including nuclear missile-targeting plans. The defendants
were seeking to utilize discovery to obtain national security
information in order to support the purported defense that
they believed the break-in was justified by national security
concerns. The Special Prosecutor argued, however, and both
District Judge Gesell and the U. S. Court of Appeals for the
District of Columbia Circuit agreed, that the information
sought was irrelevant because "good faith' motivation was not'
a valid defense against the crime charged, a conspiracy to
violate Fourth. Amendment rights. Thus the difficulty of
choosing between forfeiting an important criminal prosecution
or disclosing information potentially damaging to our national
security was avoided.
I suggest that there are a number of other types of
cases, where there has been a supposed risk of disclosing
secret material, that actually parallel the Ellsberg break-in
case. For example, in a perjury case, it is highly doubtful
that the defendant is entitled to introduce background infor-
mation of a classified nature designed to show what his false
answers were-designed to conceal. Motive is simply. not a
material issue in such a case, and the classified information
thus is not relevant at the trial.
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The new Federal Criminal Code expressly recognizes
that proposition.. Section 1345(d) of S: 1437, 95th Cong., as
.it passed the Senate on January 30, 1978, precludes a defense
in a false-statements prosecution that, in a closed con-
gressional session, a false answer was necessary "to prevent
the disclosure of classified information or to protect the
national defense." This explicit provision, of course, does
not necessarily define the maximum limits of situations in
which a "national security" defense can and should be precluded.
Congress can certainly use its power over. the definition of
the elements of federal crimes, and over the permissible
defenses to them, to deal more comprehensively with this
problem.
Another substantive legal doctrine of possible use
to avoid disclosure of classified information is the assertion
of a claim of privilege. The Supreme Court has recognized the
validity of an absolute privilege for national security
information in the context of a civil case against the govern-
ment. See United States V. Reynolds, 345 U.S. 1, 6-7 (1953).
The scope of the government's right to withhold national
security information as privileged in a criminal case is not
yet settled. In the Nixon tapes case, the Supreme Court
refused to find the President's claim of a generalized executive
privilege broad enough to justify withholding the tapes from
the Special Prosecutor for use in a criminal trial, but
strongly implied that a privilege claim based on military or
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diplomatic secrecy could prevail in such a situation. United
States v. Nixon, 418 U.S. 683, 710-11 (1974).
Further definition of this "state secrets" privilege is
in the hands of the Congress. The proposed Federal Rules of
Evidence originally promulgated by the Supreme Court included
a rule defining a privilege for-state secrets,-but Congress
found all the proposed rules dealing with privileges unac-
ceptable and rejected them. In dealing with the problem of
disclosure of national security information in criminal-
litigation, I suggest it would be advisable for Congress to
set specific standards for the scope of a "state secret"
privilege.
In any case in which a court sustains a claim that
national security information is privileged, the problem then
posed is to determine the effect of the privilege on the
further progress of the case. The proposed rule of evidence
promulgated by the Supreme Court provided that if a valid
claim of privilege,.by the government deprived the opposing
party of material evidence, it would be up to the judge to
determine what further action was required in the interests of
justice, including striking a witness's testimony, finding
against the government upon the issue as to which the evidence
is relevant, or dismissing the action. See 2 J. Weinstein,
Evidence 9 509 (1977). The proposal simply restated the
flexible discretion possessed by a trial judge. Under the
Federal Rules of Criminal Procedure, for example, a trial
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judge has an array of sanctions he can impose in the eK+ent the
government fails to comply with a discovery request. See Fed.
R. Crim. P. 16(d)(2). But it is. vital to note that dismissal
of the case is neither necessary nor likely in most situations
in which information is withheld on-the ground of the privilege
for state secrets.
The courts, although finding dismissal necessary in
some cases following a valid claim of government privilege,
have not held dismissal mandatory in all cases. In the
analogous area of the government's assertion in a criminal
case that the identity of an informer is privileged, for
instance,?the Supreme Court has held that whether disclosure
is essential to the continuing viability of the case depends
on "balancing the. public interest in protecting the flow of
information against the individual's right to prepare his
defense." Roviaro v. United States, 353 U.S. 53, 62 (1957).
Thus the defendant may not compel dismissal when the government
refuses to disclose the identity of an informer in the context
of determining whether probable cause existed for a search or
arrest, McCray v. Illinois, 386 U.S. 300 (1967), or when the
defense to which the information may be relevant is merely
speculative, United States.v. Ortega, 471 F.2d 1350 (2d.Cir.
1972), cert. denied, 411 U.S. 948 (1973).
Accordingly,. when the government makes a legitimate
claim that national security information is privileged, the
remedy available to the defendant would vary depending upon
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the circumstances of the case. At one end of the scale, for
example, if the defendant's-possible use for the information
is totally speculative, the case simply could continue
.without disclosure. At the other end of the scale, where the
information is central to I e question of guilt or innocence
and where no other alternative to public disclosure is possible,
dismissal may be necessary. In between, procedures such as
instructing the jury to assume that the missing information
would have proved a given proposition may be possible.
Certainly the Department of Justice should press for some
intermediate treatment like that before deciding that the case
must be abandoned.
This approach illustrates another area in which con-
gressional action would be useful. Congress has authority to
define rules of procedure and to prescribe a sliding scale of
sanctions. It would be useful for Congress to establish a
formal policy that directs the courts to reserve dismissal for
instances in which non-production of classified information
poses a substantial threat to a defendant's due-process right
to a fair trial.
B. Availability of Procedures Avoiding or
Restricting Disclosure
In addition to those substantive bases for avoiding
the disclose-or-dismiss dilemma, several procedural. mechanisms
can be used to-reconcile the accused's right to a fair trial
with the public interest in maintaining legitimate state
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 317-18 (1969)(per curiam). The same type of proceeding is
also permissible to determine the relevancy of material sought
from,thegovernment by a criminal defendant through discovery
procedures. See United States ex rel. Williams v. Dutton, 431
F.2d 70, 71 (5th Cir. 1970)'.
Pursuing these principles, it would be possible, in many
criminal cases involving classified information, to have the
cou.t?act.in camera to decide preliminary issues, including
discovery requests and admissibility of evidence, that involve
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secrets. The most obvious technique to insure protection of
classified information during criminal. litigation is
the in camera proceeding.
I readily acknowledge a wall-founded abhorrence for
secret trials. The Sixth Amendment to the Constitution
expressly guarantees the accused the right to a public trial.
The courts have long recognized, however, that the right of a
criminal defendant to a public trial, or even to be present at
certain kinds of hearings, is not absolute or all-embracing.
Recognizing the competing interests at stake, the Supreme
Court has already indicated that in the area of electronic
surveillance conducted for national security purposes, a court
properly may determine in an in camera, ex parte proceeding
whether the electronic surveillance was lawful, Giordano . v.
United States, 394 U.S. 310, 314 (1969) (Stewart, J., con-
curring), or whether the defendant has standing to challenge
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the risk of disclosure. This was precisely the approach
upheld by the United States Court of Appeals for the Eighth
Circuit in United States v. Bass, 472 F.2d 207,. 211 (8th
Cir.), cert. denied, 412 O.S. 928 (1973), a criminal prose-
cution for making fraudulent statements with respect to parts
supplied by a subcontractor to an Air Force contractor. The
court of appeals approved the lower court's in camera inspection
of the contract to determine whether portions of the contract
that were deleted by the government as involving. confidential
military secrets were exculpatory or otherwise relevant to the
trial.
In other cases involving the risk of disclosure of
sensitive information, the use of limited in camera procedures,
allowing either defense counsel alone or-defense-counsel and
the defendant to be present, may be sufficient to protect the
information while respecting the defendant's rights. To
illustrate, the courts have approved the exclusion of both the
public and the defendant from limited segments of criminal
hearings in order to protect the confidentiality of the
"hijacker profile" developed by the Federal Aviation Ad-
ministration. See United States v. Bell, 464 F.2d 667, 670
(2d Cir.), cert. denied, 409 U.S. 991 (1972). The public has
been excluded from portions of a trial in order to preserve
the confidentiality of undercover narcotics agents. See
United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274
(2d Cir.), cert. denied, 423 U.S. 937 (19.75). This type of
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162
procedure is ideally suited for cases in which the defendant
is a present or former official who probably had prior personal
access to the information., In that situation, there. is a
minimal incremental risk from exposing the sensitive informa-
tion to the defendant or his counsel. Even in other cases,
the use of in camera hearings on preliminary questions of
admissibility of evidence, coupled with carefully designed
protective orders, could greatly reduce the potential harm of
general public disclosure of sensitive information.
The problems I have just discussed involve production
of information that may be classified, especially information
from the government's own files. There is a distinct problem,
however, where the defendant himself threatens to disclose
classified information during his trial -- or at least is in a
position to do so. It is my view that if the information is
not otherwise relevant, the trial judge may properly forbid
the defendant's testimony about it.
We are generally loathe to muzzle a defendant testifying
on his own behalf, but even the defendant is bound by the
rules of law governing the conduct of a criminal trial,
including the rules of relevancy. My view on this problem is
supported, I believe, by decisions like that of the District
of Columbia Circuit in United States v. Gorham, 523 F.2d 1088
(D. C. Cir..1975). In that case, a piece of potential evidence,
a note signed by a prison official during a prison uprising
stating that none of the prisoners would be prosecuted, was
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held to be irrelevant. The defendants argued, however, that
it should be admitted as evidence so that the jurors might use
it in order to reach a verdict based on their "consciences"
?rather than.on the law. Although a jury has the power to
render a verdict at odds G1th the evidence and the law, the
court held that the defendant does not have a right to present
to the jury any evidence solely relevant for the purpose of
inducing such an extra-legal verdict. 523 F.2d at 1097-98.
Further analogous support is furnished by the unanimous
position of the federal courts that a defendant has no right
to an instruction to the jury that it may render such a
verdict. See,.e.g., United States V. Dougherty, 473 F.2d
1113, 1130-37 (D.C. Cir. 1972).
By similar reasoning, a defendant in a trial involving
national security information could be ordered not to testify
about sensitive information that has been held to be irrelevant
or privileged by the judge, even though the testimony con-
ceivably could have a beneficial "extra-legal" effect on the
jury for the defendant. The proper place, to rely on such
information, if it tends to mitigate the'accused's acts, would
be during sentencing, where the judge can receive it in camera
and evaluate its significance for purposes of fashioning the
appropriate sentence.
All of these procedural devices would be more effective
if Congress required that the proposed disclosure of classified
information by the defense be made the subject of pre-trial
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notice and hearing. Rules 12.1 and 12.2 of the Federal Rules
of Criminal Procedure contain somewhat similar directives.
Under Rule 12.1, a defendant who intends to rely on an alibi
defense must, upon demand by the government, provide pre-trial
notice of that intent and must supply details of the circum-
stances and supporting witnesses. The Supreme Court has
upheld such rules against constitutional attack. See Williams
v. Florida, 399 U.S. 78 (1970). Under Rule 12.2, a defendant
who may wish to rest on an insanity defense must provide
similar notice and information. Creation of a comparable rule
where the defense intends to use classified information would
greatly facilitate the informed handling of those cases.
Furthermore, an additional procedure should be designed
to lay out the ground rules for the trial before it begins.
This would give the government the opportunity to decide, before
a jury is empaneled and jeopardy attaches, whether any required
disclosures outweigh the public interest in proceeding, whether
protective procedures are adequate,'and whether interlocutory
appeals from trial court rulings are in order. See 18 U.S.C.
? 3731. The special statutory procedures for screening
evidence derived from electronic surveillance, 18 U.S.C.
?? 2518(9) and (10), 3504,? statements of government witnesses,
18 U.S.C. S 3500, and confessions, 18 U.S.C. S 3501, provide
ample precedents-for creation of procedures dealing with the
uselof national security information in criminal cases.
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. 3. Resolving the Dilemma: Who Decides?
Before closing, I also would like to address the problems
that arise from the potential conflict in authority between
the Attorney General and the Director of Central Intelligence.
Each of them may lay a plausible claim to final authority
over the decision whether or not to prosecute an offense
when the trial may involve disclosure of national security
information.
At the outset, it is important to recognize'that the
power to prosecute and the related power to decide not to
prosecute are vested solely in the Executive Branch of the
government, and its decisions are not generally reviewable by
the co-ordinate branches. Confiscation Cases, 74 U.S. (7
Wall.) 454 (1869); United States v. Cox, 342 F.2d 167 (5th
.Cir.), cert. denied, 381 U.S. 935 (1965); United States v.
Cowan, 524 F.2d 504 (5th Cir. 1975), cert. denied, 425 U.S.
971 (1976). In all'but the most unusual circumstances,
this Executive power to prosecute -- or not to prosecute -- is
exercised by the Attorney General through his subordinates in
the Department of Justice. See, e.g., 28 U.S.C. SS 515, 516.
Compare United States v. Nixon, 418 U.S. 683 (1974).
Congress has specifically provided in 28 U.S.C. ? 535(a)
that the Attorney General has the authority to investigate
violations of the federal criminal code by government employees.
To tii erscore this responsibility, agency heads are directed
to report "expeditiously" to the Attorney General any infor-
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mation concerning criminal misconduct by government employees.
28 U.S.C. S 535(b). Thus, the heads of other agencies are not
normally free to decide whether their subordinates should be
'prosecuted for apparent violations of the law.
Congress, however, has given the Director of Central
Intelligence the statutory responsibility to protect intelli-
gence sources and methods from unauthorized disclosure.
National Security Act of 1947, 50 U.S.C. 5 403g. In specific
cases, the Director may view this responsibility as conflicting
with the Attorney General's authority to investigate and
prosecute criminal violations because the prosecution could
result in a disclosure of intelligence sources or methods.
As this Subcommittee is aware, this is not a hypothe-
tical problem. In another forum/ I have testified --
critically -- about the issues raised by a 1954 understand-
ing between the Justice Department and the CIA under which the
CIA was ceded the authority.to investigate misconduct by its
own employees. The Agency apparently has effectively blocked
prosecutions by the Department of Justice. of both government
and non-government employees by simply "stonewalling" and
refusing to allow the Justice Department access to the relevant
information.
*/ Statement, "Prosecutorial Agreements Between the Depart-
ment of Justice and Other Federal Agencies," before the House
Government Operations Subcomm. on Government Information and
Individual Rights, July 23, 1975.
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It would be worthwhile for the Ccngress to resolve
this conflict and prevent future stalemates concerning the
advisability of pursuing prosecutions-that might lead to
disclosure of government secrets. In my opinion, since the
exercise of the Article if powers of the Executive Branch are
involved, the proper disposition of this problem would be to
provide for procedures under which the primary responsibility
for a decision whether to prosecute would rest with the
Attorney General, subject to the DCI's right to, appeal to the
President. It is the President who is, after all, both
commander-in-chief and chief law enforcement officer. If the
Attorney General and the Director of-Central Intelligence
cannot agree, the matter is presumably important enough to
call for Presidential resolution.
4. Conclusion.
The problems under consideration by the Subcommittee
in these hearings can never be totally eliminated. In order
to continue to protect the rights of the individual defendant
as well as the collective security of the nation, cases
will arise requir.ing the almost imponderable choice between
enforcing the rule of law and protecting some aspect of
national security. Yet through the imaginative and diligent
pursuit of alternatives like those I have suggested, it will
often be possible to avoid grasping either horn of the disclose-
oitdibsmiss dilemma. And perhaps when disclosure seems inevi-
table, it may not really portend national disaster.
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168
ADDITIONAL SUBMISSIONS OF MORTON HALPERIN
Center for National Secuity Studies
The Honorable Joseph R. Biden, Jr.
Chairman
Criminal Justice Subcommittee
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
When we appeared before your subcommittee on
February 7, 1980 to testify on S.1482, the proposed
Classified information Procedures Act, you requested
that we submit a supplemental memorandum explaining
our views on the constitutionality of the bill's
proposed amendment to the Jencks Act, 18 U.S.C.53500.
That memorandum is enclosed for the record on
behalf of the American Civil Liberties Union and
the Center for National Security Studies. We
apologize for the delay in submitting this response.
Sincerely,
Yjz,./T ~ ~ .~ `~.Y
Morton H. Halperin
Director
Allan Adler
Legislative Counsel
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SUPPLEMENTAL STATEMENT ON THE CONSTITUTIONAL DIMENSIONS
OF THE JENCKS DECISION AND THE JENCKS ACT
As we understand it, Section 10 of 5.1482 would amend
the Jencks Act to permit the Government to withhold portions
of any statement which is "otherwise producible" under the
Act if the Government claims that such portions are
"classified" and the court finds them to be "consistent
with the witness' testimony." Before the statement would
be delivered to the defendant '.'for his use", the court,
at its discretion, could either substitute summaries for
the classified portions or simply excise them from the
statement.
The amendment is supported by the Justice Department
on the grounds that the Jencks Act would otherwise "require
the disclosure to the defendant of classified information
which, though related to the subject matter of the witness's
direct testimony, is not at all inconsistent with the
witness's testimony and is thus of no value for impeachment
purposes." (Statement of Philip Heymann, Assistant Attorney
General, Criminal Division, Before the Committee on the
Judiciary, Subcommittee on Criminal Justice, United States
Senate, Concerning S.1482, February 7, 19.80, p.29)
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Acknowledging that there is substantial opposition
to the amendment, the Justice Department asserts that
"the issue is one of policy, not constitutional law."
According to the Department, there is "absolutely no
constitutional problem posed by the adoption of section
10" since the Supreme Court has stated that the Jencks
decision and the Jencks Act were not "cast in constitu-
tional terms", and since the Act itself "demonstrates
that Congress may constitutionally assign to the courts
the responsibility for determining whether aspects of a
witness's statement should be deleted before being provided
to the defendant and his counsel." (Statement of Philip
Heymann, Id. at 30-31.)
This analysis is not persuasive.
The seemingly conclusive statement by the Supreme
Court in United States v. Augenblick, 393 U.S. 348, 356
(1969), on which the Justice Department relies, is not in
fact conclusive. Justice Douglas, the author of the Court's
unanimous decision in that case, cited Justice Brennan's
concurring opinion in Palermo v. United States, 360 U.S.
343 (1959), as authority for the proposition that neither
the decision in Jencks v. United States, 353 U.S. 657 (1957)
nor the Jencks Act were "cast in constitutional terms."
However, Justice Brennan, the author of the Jencks decision,
writing for four Justices in the first Supreme Court
decision "to determine the scope and meaning" of the Jencks
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Act, discussed the basis for the Court's Jencks ruling in
terms that challenge the Justice Department's argument:
It is true that our holding in Jencks was
not put on constitutional grounds, for it
did not have to be; but it would be idle to
say that the commands of the Constitution
were not close to the surface of the decision;
indeed, the Congress recognized its constitu-
tional overtones in the debates on the statute
[footnote omitted]
360 U.S. at 362-363 (Brennan, with Warren, Black
and Douglas concurring in the result)
The first part of Justice Brennan's explanation of
the Jencks holding indicates that the Court in Jencks
was following its traditional policy of "strict necessity"
.with regard to the constitutional issues. See, e.g.,
Rescue Army v. Municipal Court of Los Angeles, 331 U.S.
549, 570-571 (1947). It was unnecessary for the Court to
justify its holding on constitutional grounds since the
issue in dispute -- whether the trial judge had erred in
denying the defendant's motion for inspection of reports
written by government witnesses -- could be decided by-
the Court "[e]xercising [its] power, in the absence of
statutory provision, to prescribe procedures for the
administration of justice in the federal courts." Palermo,
supra, at 345. See also, Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction ?3529 (1975) ("Avoidance
of constitutional grounds for decision has the obvious
advantage of leaving a more inviting path for subsequent-
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congressional action... It will be seen that many decisions
implementing specific justiciability concepts are ambiguous
or silent on the choice between constitutional and non-
constitutional grounds for decision. However frustrating
this may seem at times, the tendency. is desirable and can
be expected to continue.")
But, as the remainder of Justice Brennan's statement
clearly indicates, the Court's rationale in Jencks was
substantially, albeit inferentially, grounded in constitu-,
tional fair trial and due process guarantees. See, e.g.,
Keeffe, Jinks and Jencks: A Study of Jencks V. United
States in Depth, 7 CATH.U.L.REV. 91 (May 1958); Karen,
The Right to Production for Inspection of Documents in
Possession of the Government: Guaranteed By the Due Process
Clause?, 31 SO.CAL.L.REV. 78 (1957); Legislation: The
Jencks Case and Public Law 85-269, 7 AM.U.L.REV. 32 (1958);
Schwartz, Commentary on the Constitution of the United
States, Part III: Rights of the Person, Macmillan Co.,
N.Y.: 1968, P.125-127; Grossman and Wells, Constitutional
Law and Judicial Policy Making, Wiley & Sone, Inc., N.Y.:
1972,. p.829.
The broad. notion of "justice" as an amalgam of
constitutional due process rights pervades the majority
opinion in Jencks, see, e.g., 353 U.S. at 668-69 and 671,
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and while specific constitutional "commands" were not
identified in the decision it was clear to Congress that
legislation pursuant to Jencks could not be "designed
to nullify, or to curb, or to limit the decision of the
Supreme Court insofar as due process is concerned."
S.RPT. NO.981, 85th CONG., 1st SESS., p.3; 103 CONG.REC.
15, 249 (1957) (remarks of Rep. Celler, Chairman of the
House Judiciary Committee, in offering the Conference
Report in the House). See also 7 AM.U.L.REV., supra, at
34 ("Members of Congress were extremely aware of.the
susceptibility of such legislation to an attack on grounds
of denial of due process. Consequently, Congress was
determined to draft legislation which assured the protection
of constitutional rights.")
The Court in Jencks had held that
the defense in a Federal criminal prosecution
was entitled, under certain circumstances, to
obtain, for impeachment purposes, statements
which had been made to government agents by
government witnesses. These statements were
therefore to be turned over to the defense at the
time of cross-examination if their contents related
to the subject matter of the witness's direct
testimony, and if a demand had been made for
specific statements which had been written by
the witness or, if orally made, as recorded
by agents of the Government.
Palermo, supra, at 345-346.
In discussing the defendant's need of the disputed
reports, the Court in Jencks focussed on the subject of
impeachment:
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The crucial nature of the testimony of Ford
and Matusow to the Government's case is
conspicuously apparent. The impeachment of
that testimony was singularly important to
the petitioner. The value of the reports
for impeachment purposes was highlighted by
the admissions of both witnesses that they
could not remember what reports were oral and
what written...."
Every experienced trial judge and trial lawyer
knows the value for impeaching purposes of
statements of the witness recording the events
before time dulls treacherous memory. Flat
contradiction between the witness's testimony
and the version of the events given in his
reports is not the only test of inconsistency.
The omission from the reports of facts related
at the trial, or a contract in emphasis upon
the same facts, even a different order of
treatment, are also relevant to the cross-
examining process of testing the credibility
of a witness's trial testimony.
353 U.S. at 667.
The significance of cross-examination in the design
of due process protections provided for criminal defendants
by the Sixth Amendment cannot be overstated. The
Apocryphal. lesson of Susanna and the Elders had long-since
become a procedural fixture of English common-law by the
time our Constitution guaranteed "the accused" in all
criminal prosecutions the right to be confronted with
the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence." But it was not
until fifteen years after the Jencks decision that the
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Supreme Court formally recognized each of these Sixth.
Amendment rights as "a fundamental right essential to a
fair trial in a-criminal prosecution" and made them
obligatory upon the States by the Fourteenth Amendment.
See, Pointer V. Texas, 380 U.S. 400 (1965) (right to
confrontation); Washington v. Texas, 388 U.S. 14 (1967)'
(right to compulsory process), and Gideon ..Wainwright,
372 U.S. 335 (1963) (right to counsel).
In Pointer, supra, the Court clearly indicated that
one right was inextricably bound in the other when it
spoke of the "Sixth Amendment's guarantee of confrontation
and cross-examination" (emphasis added):
It-cannot seriously be doubted... that the right
of cross-examination is included in the right of
an accused in a criminal case to confront the
witnesses against him. And probably no one,
certainly no one experienced in the trial of
lawsuits, would deny the value of cross-
examination in exposing falsehood and bringing
out the truth in the trial of a criminal case..."
380 U.S. at 404.
A generation earlier, the Court, in Alford v.
United States, 282 U.S. 687 (1931), had upheld the right
of defense counsel to impeach a witness through cross-
examination showing that the witness's testimony was
biased because he was incarcerated in federal prison at
the time of trial. The Court discussed cross-examination
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as a "matter of right" in a manner that foreshadowed the
tone of the Court's discussion of impeachment in Jencks:
It is the essence of 'a fair trial that reasonable
latitude be given the cross-examiner, even though
he is unable to state to the court what facts a
reasonable cross-examination might develop.
prejudice ensues from a denial of the opportunity
to place the witness in his proper setting and put
the weight of his testimony and his credibility to
a test, without which the jury cannot fairly
appraise them. [Cites omitted] To say that
prejudice can be established only by showing that
the cross-examination, if pursued, would
necessarily have brought out facts tending to
discredit the testimony in chief, is to deny a
substantial right and withdraw one of the safeguards
essential to a fair trial.
282 U.S. at 691-692.
More recently, in Davis v. Alaska, 415 U.S. 308 (1974),
the Court again declared how and why a defendant must
be permitted to demonstrate the weakness of prosecution
testimony through impeachment in cross-examination:
Cross-examination is the principal means by which
the believability of a witness and the truth of
his testimony are tested. Subject always to the
broad discretion of a trial judge to preclude
repetitive and unduly harassing interrogation,
the cross-examiner is not only permitted to
delve into the witness' story to test the
witness' perceptions and memory, but the cross-
examiner has traditionally been allowed to
impeach, i.e., discredit, the witness. One way
of discrediting the witness is to introduce
evidence of a prior criminal conviction of that
witness... A more particular attack on the
witness' credibility is effected by means of
cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives
of the witness as they may relate directly to
issues or personalities in the case at hand...
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We have recognized that the exposure of a witness's
motivation in testifying is a proper and important
function of the constitutionally protected right
of cross-examination.
415 U.S. at 316.
The Court also reaffirmed the validity of its Alford
ruling, noting that "[a]lthough Alford involved a federal
criminal trial and we reversed because of abuse of
discretion and prejudicial error, the constitutional
dimension of our holding in Alford is not in doubt."
514 U.S. at 318, n.6. (See discussion of the Court's
-
"strict necessity" policy, supra.)
In the context of these prior and subsequent rulings,
it would be specious to argue that either the Court or
Congress could regard the Jencks decision and the Jencks
Act as bereft of constitutional scope. Accord, see
Jencks, supra, at 674 (cites Alford with approval); Palermo,
supra, at 362 (Brennan, with Warren, Black and Douglas,
concurring in the result, discusses potential violation of
Sixth Amendment confrontation and compulsory process rights
through denial of Jencks request); Augenblick, supra, at 356,
("It may be that in some situations, denial of production
of a Jencks Act type of a statement might be a denial of
a Sixth Amendment right."); Grossman and wells, supra,
p.829; Schwartz, supra, p.125.
Congress made crystal clear its pufpose only to
check extravagant interpretations of Jencks
in the lower courts while reaffirming the basic
holding that a defendant on trial should-be
entitled to statements helpful in the cross-
examination of government witnesses who testify
against him.
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Palermo, supra., at 365 (Brennan, with Warren,
Black, and Douglas, concurring in the result)..
See also S.RPT. No.981, 85th CONG., 1st SESS.,
supra,.at p.3, and H.RPT. No.700, 85th CONG.,
1st SESS., p.3-4.
The proposed amendment to the Jencks Act in S.1482,
then, must be examined closely with respect to constitu-
tional considerations embodied in the Jencks decision
and in the Act itself. Under such scrutiny, it could well
be concluded that "I1)ess substantial restrictions than
this of the common-law rights of confrontation of one's
accusers have been struck down by this Court under the
Sixth Amencjment." Palermo, supra, at 362 (Brennan, with
Warren, Black, and Douglas, concurring in the result.)
The first problem with the proposed amendment is
that it would permit the defendant to inspect a concededly
producible prior statement of a government witness
only after the court has made a determination of incon-
sistency with regard to the witness's testimony. Such a,
conditional showing of inconsistency prior to delivery
to the defendant was precisely the requirement rejected
by the Court in Jencks:
We also held that the trial judge was not to
examine the statements to determine if they
contained material inconsistent with the
testimony of the witness before deciding
whether he would turn'them over to the defense.
Once the statements had been shown to contain
related material only the defense was adequately
equipped to decide whether they had value for
impeachment.
Palermo, supra, at 346.
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The Court in Jencks rejected such a requirement as
"clearly incompatible with our standards for the administra-
tion of criminal justice in the federal courts...".
353 U.S. at 668. In so doing, the Court went beyond the
defendant's own request, which did not seek inspection
of the entire documents but only "those portions of the
reports which the trial court might determine to have
evidentiary value for impeachment purposes..." 353 U.S.
at 673 (Concurring opinion of Justice Burton, joined by
Justice Harlan). But the Court's ruling, that the
defense must initially be entitled to see the reports
to determine what use may be made of them, was not lightly
reached. "Justice requires no less," said the Court,
353 U.S. at 669, citing the analogous reasoning of Chief
Justice John Marshall in United States v. Burr, 25 Fed.
Cas.No. 14694, at 187 (C.C.Va. 1807).
Congressional enactment of the Jencks statute did
not change this rule in any way. If the Act can in
any way be interpreted to require that the defendant
not receive Jencks material prior to laying a suffi-
cient foundation, it is only indirectly through the
requirement that the witness testify on direct examination
during trial before the defendant is entitled to production.
See, 7 A.M.U.L.Rev., supra at 36.
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In Dennis v. United States, 384 U.S. 855 (1966), where
the Court determined that a government witness's prior
statements to a grand jury were producible under the Jencks
Act, a similar judicial inspection procedure was again
flatly rejected, with the Court noting that it was, not
realistic to assume that the trial court's
judgment as to the utility of material for
impeachment or other legitimate purposes,
however conscientiously made, would exhaust
the possibilities. In our adversary system,
it is enough for judges to judge. The
determination of what may be useful to the
defense can properly and effectively be made
only by an advocate.
384 U.S. at 874-875.
By allowing the court, in its discretion, to excise
.or substitute summaries for those portions of the prior
statement which the court finds "consistent with the
witness's testimony," the procedure in S.1482's proposed
amendment to the Jencks Act would maximize the prejudice to
the defendant that results from thrusting the discretionary
authority of the court into a situation clearly implicating
the defendant's Sixth Amendment right to assistance of
counsel as well as his right to confrontation.
Congress, in enacting the Jencks legislation, was quite
explicit with respect to the trial court's power to excise
portions of otherwise producible statements. That power,
according to the statute, can be exercised only when directed
toward matter "which does not relate to the subject matter
of the testimony of the witness." 18 U.S.C. S3500(c). Where
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181
all of the material relates to the subject matter of the
witness' testimony, no further judicial inquiry - i.e.,
for inconsistency - is either required or permitted by the
Act. "If the entire contents of any such statement relate
.to the subject matter of the testimony of the witness, the
court shall order it to be delivered directly to the
defendant for his examination and use." 18 U.S.C. 93500(b).
See also Palermo, supra, 360 U.S. at 353 n.10. ("Of course
the statute does not provide that inconsistency between.the
statement and the witness' testimony is to be a relevant
consideration.")
Nor does the Jencks Act permit a "summary" of a prior
statement by a government witness to be given to the
defendant as a "Jencks statement." Palermo, supra,
at 352-353. Although the Court in Palermo was specifically
addressing the issue of legislative intent with respect to
summaries of oral prior statements by government witnesses
and the meaning of the term "statement" as used in the Act,
its rationale would seem to apply with equal force to the
proposed "summary" procedure in S.1482:
It is clear that Congress was concerned that only
those statements which could properly be called
the witness' own words should be made available
to the defense for purposes of impeachment. It was
important that the statement could fairly be deemed
to reflect fully and without distortion what had
been said to the government agent. Distortion
can be a product of selectivity as well as the
conscious or inadvertent infusion of the recorder's
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opinions or impressions.. It is clear... that the
legislation was designed to eliminate the danger
of distortion and misrepresentation inherent
in a.report which merely selects portions, albeit
accurately,. from a lengthy oral recital. Quoting
out of context is one of the most frequent and
powerful modes of misquotation.
360 U.S. at 352.
The most serious problem with the proposed amendment,
'however, is not embodied in these procedural departures from
the Jencks decision and the subsequent Jencks legislation.
It lies instead with the fact that they would be required
as part of,a newly-created "classified information" exemption
to the Jencks Act. The court's "consistency" review would be
triggered by the government's claim that an "otherwise
producible" statement "contains, classified information."
Once a portion of the statement is identified by the
government as classified, and declared by the court to be
consistent with the witness' testimony, it would be lost to
the defendant in the only form permissible for impeachment
purposes. I
Such a result could hardly be reconciled with the Jencks
decision. The Court in Jencks was presented with the issue
of government privilege in a rather oblique manner, which
elicited guidance for future situations rather than a finding
for facts immediately before it:
In the courts below the Government did not assert
that the reports were privileged against disclosure on
grounds of national security, confidential character of
the reports, public interest or otherwise. In its
brief in this Court, however, the Government argues
that, absent a showing of contradiction, '[t]he rule
urged by petitioner... disregards the legitimate
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interest that each party - including the Government -
has in safeguarding the'privacy of its files,
particularly where the documents in question were
obtained in confidence. Production of such
documents, even to a court, should not be compelled
in the absence of a preliminary showing by the
party making the request.
353 U.S. at 660-670. But see, contra S.RPT. No.981,
suFra, p.5 (Court did notinn any way deny the
privilege of Government papers).
After quoting at length from its own ruling in United
States v. Reynolds, 345 U.S. 1 (1953), and from Judge
Learned Hand's seminal decision in United States v. Andolschek,
142 F.2d. 503 (2nd Ci'r. 1944), the Court held that
the criminal action must be dismissed when the
Government, on the ground of privilege, elects
not to comply with an order to produce, for the
accused's inspection and for admission in
evidence, relevant statements or reports in its
possession of government witnesses touching the
subject matter of their testimony at the trial.
(citations omitted] The burden is the
Government's, not to be shifted to the trial
judge, to decide whether the public prejudice
of allowing the crime to go unpunished is
greater than that attendant upon the possible
disclosure of state secrets and other
confidential information in the Government's
possession.
Justice Clark, the lone dissenter in Jencks, warned of
the danger the Court's majority ruling would unleash with
respect to national security:
Unless the Congress changes the rule announced by
the Court today, those intelligence agencies of our
Government engaged in law enforcement may as well close
up shop, for the Court has opened their files to the
criminal and thus afforded him a Roman holiday for
rummaging through confidential information as
well as vital national secrets. This
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may well be a reasonable. rule in state prosecutions
where none of the problems of foreign relations,
espionage, sabotage, subversive activities,
counterfeiting, internal security, national defense,
and the like exist, but any person conversant with
federal government activities and problems will
quickly recognize that it opens up a veritable Pandora's
box of troubles. And all in the name of justice.
353 U.S. at 681-682 (Clark, dissenting)
The public uproar which followed the Jencks decision,
fueling the rush to precipitous corrective Congressional
action, was largely-the result of Justice Clark's
inflammatory dissent. See, 103 CONG.REC. 14400 (1957)
(remarks ok Sen. Ervin); Grossman and wells, supra, at 830
("This wholly inaccurate charge, and virtually no other part
of the decision, made the press and media headlines the
following day and was widely used by members of Congress
seeking to reverse the Jencks ruling."); 67 YALE L.J. 674,
680 (1958) ("Popular reaction-to the Supreme Court's decision
in Jencks was entirely out of proportion to the limited
import of the holding... Sparked by [Justice Clark's]
statement, the public widely misinterpreted Jencks as
allowing far broader rights of discovery than were actually
contemplated by the decision.")
The Department of Justice and the FBI pressed the
argument for legislative clarification of the Jencks
decision by asserting that widespread judicial misinterpre-
tation of the ruling in the lower courts had resulted in
orders for pretrial disclosure of statements and reports,
disclosure of entire FBI and Secret Service investigative
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files, disclosure of grand jury testimony, and disclosure
of other kinds of materials such as lists of potential witnesses.
See 103 CONG.REC. 14, 550-'554, N.14 (1957) (brief
submitted to Congress by the Justice Department). But see
67 YALE L.J., supra, at 683, n. 34 ("No case involved an
erroneous court order exposing information which would affect
the national security. Most of the disputed information seems
of the most trivial significance.")
The resulting legislation,. according to the Senate
Judiciary Committee, "cleared, away" misinterpretations and
misunderstandings of the Jencks decision by setting forth a
detailed procedure "both to protect individual rights during
criminal prosecutions and to protect confidential information
in the possession of the Government." See S.R.P. No. 981,
supra.
The Jencks Act, as enacted in 1957 and amended in 1970,
calls upon the trial court to make two determinations: first,
whether the material at issue is a "statement" as defined in
18 U.S.C.93500(e); and, second, whether such statement
relates to the subject matter of the witness' direct
testimony. 18 U.S.C. 53500(c). Once these determinations
are made in the affirmative, the Act requires the trial
court to "order the United States to produce" the statements
to the defendant "for his use." There is no third
determination based upon the Government's characterization of
the material as secret, confidential or otherwise privileged.
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Grounds asserted outside the boundaries of the Jencks Act
for nondisclosure of "otherwise producible" material have been
repeatedly rejected by the courts. For example, in West v.
United States, 274, F.2d. 885 (6th Cir. 1960), cert. denied,
365 U.S. 819 (1961), the Court of Appeals upheld the trial
judge's action in excising a portion of a report made by an
FBI agent who testified for the prosecution:
[The trial judge] did not sustain the making of
the excisions on the basis of internal security
considerations. On the'contrary, he held that even
though the statements might affect internal
security, nevertheless, if they contained matters
relevant to the testimony of the witness, they would
have to be furnished or the case dismissed.
274 F.2d. at 890.
Similarly, in Ogden v. United States, 303 F.2d. 724
(9th Cir. 1962), the Court of Appeals commented on the trial
court's in camera deletions from requested Jencks materials:
At one point in the record the trial court stated
that it had 'eliminated certain portions [of the
statement] which it felt were of a confidential
nature for the Federal Bureau of Investigation...'
This, if true, would have been error. [cite
omitted]. The sole basis upon which the trial
court may excise portions of a producible
statement is that they 'do not relate to the subject
matter of the testimony of the witness.' 18 U.S.C.
93500(c)."
303 F.2d at 739. See also Lloyd v. United States,
412 F.2d. 1084 (5th Cir. 1969). ("internal government
document")
In Dennis v. United States, supra, the Supreme Court
concluded that the secrecy privilege generally accorded to
grand jury testimony does not bar production of the grand
jury testimony of government witnesses pursuant to the Jencks Act.
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Nor.would the Court exempt otherwise producible statements
on a claim of attorney work-product privilege, Goldberg v.
United States, 425 U.S. 94 (1976):
We see nothing in the Jencks Act or its
legislative history that excepts from
production otherwise producible statements
on the ground that they constitute the work
product of Government lawyers,"
425 U.S. at 101..
The clear import of these decisions, with respect to
the proposed amendment in S.1482, is reinforced by the
language in subsection (d) of the Jencks Act. That provision,
with one significant change, codifies the Jencks holding in
situations"when the Government, on the ground of privilege,
elects not to comply with an order to produce..." 353 U.S.
at 672. Although Congress substituted the possibility of
striking the witness's testimony for the Court's more
peremptory remedy of dismissal, the holding of the Court,
that the burden of considering the consequences of disclosing
"state secrets and other confidential information" rests,
solely with the government and not with the trial judge, was
left undisturbed. See, e.g., 103 CONG.REC. 15784
(comments of Sen. Ervin), 15935 (statement of Sen. Hruska)
and 16488 (comments of Sen. Javits)(1957). Also, 68 YALE L.J.
1409, 1412 (1959) ("By negative inference, the proposition
that institution of a criminal suit constitutes waiver of
any governmental privilege was also accepted.")
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Thus each important aspect of S.1482's proposed
amendment to the Jencks Act -- i.e., court inspection for
inconsistency, court discretion in excision or substitution
of summaries where consistency is determined, and Government
assertion of privilege to withhold "otherwise producible"
statements from the defendant -- runs afoul of the prescriptions
of the Jencks decision, the Jencks Act, and a host of
authoritative precedents and progeny clarifying the meaning
and intent behind both. Their cumulative effect would be
to deny criminal defendants to whom they are applied "the
right to effective cross-examination which 'would be
constitutional error of the first magnitude and no amount
of showing of want of prejudice would cure it.' [cites
omitted]. Smith v. Illnois,390 U.S, 129."Davis v. Alaska,
supra, at 318.
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McLEAN OFFICE BUILDING
6723 WHITTIER AVENUE, SUITE 303A
McLEAN, VIRGINIA 22101
PHONE [phone]
Sincerely,
y t _w S , `V1CL Lill \
ohn S. Warner
GLegal Advisor
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Senator Joseph R. Biden, Jr.
Chairman, Criminal Justice Subcommittee
Senate Judiciary Committee
Washington, DC 20510
Association o
Former
Intelligence
Officers
Thank you for your letter of January 14, 1980 inviting me to testify before
the Subcommittee on S. 1482, the Classified Information Procedures Act. While
I shall be unable to testify I wish to submit this statement and request that it be-
come a part of the hearing record.
The Association of Former Intelligence Officers (AFIO) strongly supports
the objectives of S. 1482 and recommends favorable action. For years the courts
have attempted to deal with the problem of classified information involved in
criminal prosecutions. Various judges have dealt with the matter in different
ways and prosecuting attorneys have approached the problem in differing ways.
The defense in many cases will ask the courts to permit use of classified
information and in certain of these cases will attempt to thwart prosecution by
frivolous demands for classified documents. S. 1482 would establish a procedure
and a means of reaching orderly decisions in a particular case. Such legislative
guidelines will be most useful for the courts and prosecuting attorneys and will
provide a means of dealing with frivolous demands of the defense designed to hide
behind the smoke-screen of classified information.
No one believes there can be a simple solution to the problem of classified
information in criminal prosecutions. Certainly, S. 1482 is not a panacea but it
is a strong constructive approach which will eliminate many problems. In many
cases there will remain the necessity for the exercise of careful and reasoned
prosecutorial discretion.
Permit me to point out what appears to be a simple error -- the word "intel-
ligence" in line 12 on page 13 of the bill should be "classified".
Thank you again for your invitation to testify. I hope this letter will be use-
ful in the Subcommittee's consideration of S. 1482.