GRAYMAIL LEGISLATION HEARINGS BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF REPRESENTATIVE NINETY-SIXTH CONGRESS FIRST SESSION

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100010021-3
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• Document Creation Date: December 21, 2016
• Document Release Date: October 23, 2008
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• Publication Date: September 20, 1979
• Content Type: OPEN SOURCE

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GRAYMAIL LEGISLATION
HEARINGS
SUBCOMMITTEE ON LEGISLATION
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
AUGUST 7, 1979
SEPTEMBER 20, 1979
U.S. GOVERNMENT PRINTING OFFICE
55-554 WASHINGTON : 1980
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by H. Res. 8; 95th Congress, 1st Session.)
EDWARD P.' BOLAND, Massachusetts, Chairman
CLEMENT J. ZABLOCKI, Wisconsin J. KENNETH ROBINSON, Virginia
BILL D. BURLISON, Missouri JOHN M. ASHBROOK, Ohio
MORGAN F. MURPHY, Illinois ROBERT McCLORY, Illinois
LES ASPIN, Wisconsin G. WILLIAM WHITEHURST, Virginia
CHARLES ROSE, North Carolina C. W. BILL YOUNG, Florida
ROMANO L. MAZZOLI, Kentucky
NORMAN Y. MINETA, California
WYCHE FOWLER, JR., Georgia
THOMAS K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
PATRICK G. LONG, Associate Counsel
JEANNE M. MCNALLY, Clerk
SUBCOMMITTEE ON LEGISLATION
MORGAN F. MURPHY, Illinois, Chairman
ROMANO L. MAZZOLI, Kentucky ROBERT McCLORY, Illinois
WYCHE FOWLER, JR., Georgia JOHN M. ASHBROOK, Ohio
EDWARD P. BOLAND, Massachusetts
BERNARD RAIMO, Jr., Counsel
IRA H. GOLDMAN, Counsel
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CONTENTS
Hearings held on-
Page
August 7,1979------------------------------------------------
1
September 20,1979--------------------------------------------
91
Statements of-
Mr. Philip B. Heym
Division, Departmen
Special Assistant to
TUESDAY, AUGUST 7, 1979
ann, Assistant Attorney General, Criminal
t of Justice, accompanied by Mr. Ronald Stern,
the Assistant Attorney General --------------
4
Ms. Deanne Siemer, G
eneral Counsel, Department of Defense-------
28
Mr. Morton Halperin,
on behalf of the Am
National Security St
director, Center for National Security Studies,
erican Civil Liberties Union and the Center for
udies____________________________________
41
Michael Tigar, Esq., T
igar & Buffone____________________________
57
Michael G. Scheining
partner, Bonner, Th
er, Esq., former assistant U.S. attorney and
ompson, O'Connell & Gaynes---------------
74
Thomas A. Guidoboni
Service and member
, Esq., formerly of the D.C. Public Defender
, Bonner, Thompson, O'Connell & Gaynes
83
TH
Philip Lacovara, Esq.,
URSDAY, SEPTEMBER 20, 1979
Hughes, Hubbard & Reed__________________
92
William Greenhalgh,
Law Center, former
of Columbia and cha
Criminal Code Revis
Esq., professor of law, Georgetown University
Chief Assistant U.S. Attorney for the District
irman, Criminal Justice Section Committee on
ion, American Bar Association--------------
123
Otto Obermaier, Esq.
patrick, representing
York-------------
, Obermaier, Marvello, Abramowitz & Fitz-
the Association of the Bar of the City of New
------------
137
Daniel Silver, Esq., Ge
neral Counsel, Central Intelligence Agency---
144
Anthony A. Lapham,
telligence Agency---
Esq., former General Counsel, Central In-
-----------------------------------------
155
Appendix-
I. H.R.4736------------------------------------------------
164
II. H.R.4745------------------------------------------------
181
III. S.1482--------------------------------------------------
195
IV. Jencks Act-----------------------------------------------
209
V. Excerpts from Federal Rules of Criminal Procedure and Federal
Rules of Evidence---------------------------------------
210
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GRAYNAIL LEGISLATION
TUESDAY, AUGUST 7, 1979 711
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:05 a.m., in room
H-405, the Capitol, Hon. Morgan Murphy (chairman of the sub-
committee) presiding.
Present : Representatives Murphy, Mazzoli, and McClory.
Also Present: Thomas K. Latimer, staff director; Michael J. O'Neil,
chief counsel; Bernard Raimo, Jr., counsel; Ira H. Goldman, counsel;
Herbert Romerstein, professional staff member; and Louise Dreuth,
secretary.
Mr. MURPHY. Good morning, ladies and gentlemen. Let me apologize
for being a few minutes, late. Evidently my staff thought I was on
vacation and nobody was in my congressional office.
Today we begin a series of hearings to consider legislation dealing
with the phenomenon called graymail. They stein directly from hear-
ings earlier this year before this subcommittee on espionage laws and
leaks. They will seek to resolve the problems associated with graymail,
which is a term used to describe the dilemma facing the Government
when a defendant claims that he must use classified information in de-
fending himself. The Government then must choose between going
forward with the prosecution, thereby compromising the classified
material, or safeguarding the material but dropping the prosecution.
For a variety of reasons, the past few years have witnessed a sig-
nificant increase in the number of criminal prosecutions in which the
use or disclosure of classified information has become an issue. Such
cases are not confined to any particular area of alleged illegal activity.
Crimes charged have included espionage, perjury, narcotics distribu-
tion, burglary, and civil rights violations, among others.
Enforcement of the new overseas bribery statute will add to the list
of such cases.
Whatever the charge, whenever classified information becomes in-
volved the Government is likely to be faced with the disclose-or-
dismiss dilemma, with what has become popularly known as graymail.
Sometimes graymail is actively employed by an unscrupulous de-
fendant who threatens to publicly reveal all kinds of sensitive in-
formation, even if it has no possible bearing on the issues of the case,
if a prosecution is brought or continued. At other times the defendant
seeks only to exercise his right to present to the jury admissible evi-
dence that is relevant to a legitimate defense theory and which con-
sists of classified information.
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In either instance, all the Government can do is make an educated
guess as to what classified information may be revealed during the
trial, and then if it decides to proceed with the prosecution, sit back
with its fingers crossed and hope that the actual information disclosed
doesn't result in too much damage to the national security.
Such a situation. is unacceptable. Both bills before the subcommittee,
H.R. 4736, drafted by members of the subcommittee, and H.R. 4745,
the administration proposal, are designed to eliminate the guess-
work, surprise and fear from such a crucial decisionmaking process.
They achieve this result primarily by requiring most of the judicial
decisions regarding relevancy or admissibility of classified informa-
tion to be made prior to trial, and by authorizing the court in certain
limited circumstances, to order that relevant classified information be
admitted in a sanitized form.
I wish to emphasize that neither bill is designed to allow the with-
holding from the defendant of any relevant admissible evidence. A
state secrets privilege is .not being introduced into the criminal law.
It should also be noted that although the subcommittee and the ad-
ministration have worked together closely and productively in draft-
iug. these bills, there are 'a few issues of which we could. not agree.
Therefore, though substantially similar, the two bills contain a limited
number of significant'differences.
I am confident that these differences concerning the Jencks Act,
the timing of the Government's argument on the national security
significance of the information at issue, and the reciprocity section,
amongst obhers, will be resolved as the legislative process continues.
I am looking forward to that process and to a continuation of the
productive working relationship that has developed among the House
and the Justice Department in our deliberations on this legislation.
In closing, I would like to thank the members of the subcommittee
who have joined in sponsorship of this bill. Mr. McClory, my colleague
from Illinois, the ranking minority member of the subcommittee, has
contributed significantly to its development, as has our colleague on
the subcommittee, Mr. Mazzoli of Kentucky. While we are not in full
agreement on every provision, we are all committed to continue work-
Mg together closely to produce a fair and effective procedural mecha-
nism for dealing with the use of classified information in criminal
trials.
I would also like, before turning it over to Mr. McClory for his
statement, to thank him for appearing today, and taking the time
from his busy schedule. I know you wanted to be back in your district
working, and I thank my colleague for being here.
Mr. MCCLORY. Well, Mr. Chairman, I can't think of a more im-
portant place to be than right here, and working with you today on
this very crucial problem with which the Congress must deal, it seems
to me, directly. And I am pleased that you have moved quickly to
schedule hearings to consider legislation to deal with the so-called
graymail problem. It was less than a month ago that Congressman
Mazzoli. and you and I joined in announcing the introduction of the
Classified Information Criminal Trial Procedures Act, as it is called.
Mr. Chairman, I also appreciate the efforts of our first witness this
morning, Phillip Heymann, Assistant Attorney General in charge of
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the Criminal Division, in working with the committee on what has
become H.R. 4736. This spirit of cooperation that he has demonstrated
is to'be commended.
It is important to recognize, however, that a few significant differ-
ences in 'approach are suggested' by a comparison of 'that bill and
H.R. 4745, the administration's proposal. In this regard, I am glad
that the chairman of the Judiciary Committee, Congressman Peter
Rodino, chose, to introduce that bill so that we might have before us,
in black and white, two distinct approaches which have been sug-
gested to meet an admitted problem.
The situation as it exists today-when classified information is rele-
vant to a criminal proceeding-has few, if any guidelines. This is
unfair to the Government which must investigate and prosecute alle-
gations of criminal wrongdoing; this is unfair to the defendant, who
has little, if any, opportunity to discover prior to the actual trial the
exact nature and sensitivity of information which might be relevant
to his defense; and this is unfair to the public, to whom we owe a
duty and to which the Executive owes a duty to provide a fair equal
administration of justice.
As with many legislative problems, the definition of the goal is
simple; 'the hard part is mapping the route which must be traveled
to get there. Here the goal is to reduce the uncertainties inherent in
a case in which classified information may be relevant, without pro-
viding an unfair tactical advantage to either party.
If any. of the new rules being proposed would place a burden on
either party which was previously nonexistent, I do not believe that
this by itself is a reason to dismiss it or to provide some sort of reci-
procity or compensation to that party. It is an unfortunate fact of the
circumstances that a proceeding involving classified information must
be set apart from all other criminal procedures. But the record of
Senator Biden's investigation in the Senate, and of our own investiga-
tion, as set out in hearings held this past January, indicates that this
is nevertheless necessary.
However, if on top of any new burden it is shown that a particular
contemplated rule would do injury to a party, this committee must
seek to require that the other party provide reciprocity targeted
specificially to undo that damage. This, indeed, is what we can ap-
propriately call reciprocity.
Finally, if no provision for such fair reciprocity can be devised, as
a matter of constitutional law, policy, and fairness, the committee
may be faced with the proposition of rejecting such a proposed rule.
I thank you, Mr. Chairman, for allowing me to make these few re-
marks. I certainly want to join with you in welcoming our witnesses
here this morning, and I look forward to the hearings that we are
undertaking at this time.
Mr. MURPHY. Thank you, Mr. McClory.
Now, ladies and gentlemen, let me welcome our opening witness
this morning, Mr. Philip Heymann, the Assistant Attorney General
for the Criminal Division. Mr. Heymann came to the Department after
a distinguished career, most recently as a professor of law at the Har-
vard Law School. He has led the Government's effort in drafting this
legislation, and is most responsible for its reasoned and well-balanced
approach.
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Mr. .Heymann, we welcome you. Please proceed with your statement.
[The prepared statement of Mr. Philip B. Heymann follows:]
STATEMENT OF PHILIP B. HEYMANN, ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION
Mr. Chairman, and members of the committee, I am pleased to be here today
to discuss the various legislative proposals that have been introduced in response
to the problems posed by classified information in criminal cases. There are two
bills before this. subcommittee H.R. 4736, introduced by Congressman Murphy
and co-sponsored by several members of this subcommittee, and H.R. 4745, an
Administration bill. introduced by the chairman of the House Judiciary Com-
mittee, Congressman Rodino. In addition, Senator Biden, chairman of the Rights
of Americans Subcommittee of the Senate Intelligence Committee, has also in-
troduced legislation, 5.1482, addressing this problem.
At the outset, I want to commend the chairman as well as Congressman
Mazzoli and Congressman McClory and the committee staff for their diligent
and constructive efforts to address what has.come to be known as the "graymail"
problem. Following Senator Biden's pioneering efforts last year, this committee
held hearings in January that focused additional attention on the need to improve
procedures for criminal cases involving classified, information. Since that time,
the committee and its staff along with Senator Biden, the Justice Department,
and the ACLU have worked to devise legislation that would provide needed
procedures for these troublesome cases.
As the chairman and I both noted. in announcing the introduction of the
various bills on July 11, some important differences in approach remain to be
resolved. I am pleased that the committee has acted expeditiously in calling these
hearings so that we may begin to explore the remaining areas of disagreement
and move forward with this legislation.
My testimony today will touch upon three major areas. First, I will 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 solve those problems. Second, I will describe the approach taken in the ad-
ministration's proposal, H.R. 4745, and explain the basis for its various provisions
and the important improvements they would produce. Third and finally I will
discuss what I see as the major differences between H.R. 4736 and H.R. 4745.
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 resulting ?
from disclosure of sensitive national defense information and jeopardizing or
abandoning the prosecution of criminal violations. The government's understand-
able reluctance to compromise national security information invites defendants
and their counsel to press for the release of sensitive classified information the
threatened disclosure of which might force the government to drop the prosecu-
tion "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 proce-
dures, decisions regarding the relevance and admissibility of evidence are. nor-
mally 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 dis-
closed at trial and the damage inflicted before a ruling on the use of the infornia-
tion 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
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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 informa-
tion. The costs of such decisions go beyond the failure to redress particular
instances of illegal conduct. Such determinations foster the perception that gov-
ernment 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-
istuation of criminal justice but it also promotes concern that there is no effective
check against improper conduct by members of our intelligence agencies.
While only a very small percentage of criminal cases present classified in-
formation questions, these cases often involve important matters of considerable
public interest. Moreover, as the Chairman has previously noted, we are in-
creasingly 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 provisions 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 uni-
form set of procedures for resolving classified information issues prior 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 se-
curity costs of.a prosecution, the government under the.procedures contained
in H.R. 4736 and H.R. 4745 would be able to determine whether in fact there
was an actual conflict between its prosecution and national security respon-
sibilities 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 responsibilities and its duty to guard
against disclosure of classified information, I believe that the procedures con-
tained in both bills would significantly enhance the government's ability to dis-
charge these responsibilities without jeopardizing the defendant's right to a
fair trial.
1. Overview
The Administration bill, H:R. 4745, addresses a wide range of procedural
issues involving classified information that may arise at various stages of a
criminal case. We have atttempted to devise procedures that will deal with
specific problem areas that have been encountered in past cases and to provide
guidance that will promote uniformity and predictability in the handling
of classified information issues ,by district judges.
Key provisions of H.R. 4745 would create a procedure for pretrial rulings
and appeals on whether classified information may be disclosed by the defend-
ant at pretrial or trial proceedings. These provisions would prevent the pre-
mature and unnecessary abandonment of prosecutions in the face of "gray-
mail" threats by enabling the government to obtain court orders barring the
disclosure of inadmissible 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 ap-
peals the bill would-redress the present situation in which the government, when
faced with a questionable district court ruling, must either compromise the na-
tional security information by permitting its disclosure at trial or withhold the
information and jeopardize the prosecution.
Other important issues addressed in the Administration bill include the early
establishment of timetable for resolving issues involving classified information
in criminal cases : the requirement of appropriate protective orders to safeguard
classified materials disclosed to defendants pursuant to discovery requests, due
process requirements or other obligations of the government ; the provision of
guidance regarding the use of alternatives to the disclosure of classified informa-
tion to the defendant ; procedures related to the introduction and proof of class!-
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fled matters at trial ; the establishment of security procedures for the safe-
keeping of classified information submitted to the federal district and appellate
courts ; and a limited modification of the government's Jencks Act obligations
in order to avoid undue interference with the government's ability to prosecute
cases dealing with classified information.
It is important to note that the bill 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 will be noted
below, the major features of the Administration bill are rooted in statutory
provisions and procedural rules that now apply to the conduct of criminal
cases. Moreover, the bill reflects our desire to preserve the important values
served by public trials in criminal cases. There are no provisions that would
authorize the exclusion of the public or the press during the taking of any testi-
mony at a criminal trial.
2. Discussion of individual provisions
a. Section 1. Title.-This section entitles the bill the "Classified Information
Procedures Act."
b. Section 2. Definitions.-This section defines the terms "classified informa-
tion" and "national security" for purposes of the bill. These. definitions deter-
mine the scope of the information subject to the procedures contained in the bill.
The definition of "classified information" in subsection (a) is intended to en-
compass all information determined pursuant to executive order, statute,. or
regulation to require protection for reasons of national security. In order to
avoid any uncertainty, "restricted data," as defined in the Atomic Energy Act
of 1954, is specifically included within the definition of "classified information."
Subsection (a) is written in general terms so as to encompass 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. The definition of "national security" in subsection (b)
tracks the definition of that term in Executive Order 12065.
c. Section 3. 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 section will enable either party to secure a pre-
trial conference early in, the case to set appropriate timetables for the resolu-
tion of issues involving classified information. This procedural mechanism
should afford the parties and the court adequate opportunity to address the
often complex and sensitive questions presented in criminal cases involving clas-
sified information.
d. Section 4. Disclosure of classified information to defendants.-This section
includes provisions governing the disclosure of classified information to de-
fendants in connection with criminal cases. Subsection (a) requires that the
court, upon the request of the government, enter an appropriate order to protect
against the compromise of classified information disclosed to the defendant. 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 dis-
covery process. In addition, subsection (a) calls upon the court to issue suitable
protective orders in connection with disclosures made by the government other
than pursuant to the discovery process. The subsection also provides important
guidance regarding the protective measures that may be utilized by the courts
by specifying seven types of provisions that would normally be appropriate to
safeguard against the compromise of classified information disclosed to de-
fendants. It is contemplated that the defendant would be provided with an op-
portunity for a hearing on the particulars of the protective order.
Subsection (b) provides that, upon the motion of the government, alternatives
to disclosure of the specific classified information are to be employed where
the classified information itself is not necessary to enable the defendant to
prepare for trial. 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 appropriate." Subsection (b) is intended to supplement Rule
16(d) (1) by providing guidance to the court as to the alternatives to be em-
ployed when disclosure of the specific classified information to the defendant
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Is not necessary. These alternatives include the deletion of specific items of in-
formation, the use of a portion or summary of the information, and the substi-
tution of a statement admitting relevant facts. The procedure provided in sub-
section (b) is intended both to permit prosecutions to be continued where an
order requiring that the specific classified information be disclosed to the de-
fendant would prompt the government to dismiss the case and to protect against
the unnecessary disclosure of classified information. The defendant's interests
are protected since the subsection may not be used to withhold any classified
information necessary to enable the defendant to prepare for trial. As under
present Rule 16 (d) (1),_ the bill provides that the government may demon-
strate that the use of such alternatives is warranted in an in camera submission
to the court alone. Subsection (b) (2) insures that the defendant will. be able
to obtain appellate review if information is withheld pursuant to subsection
(b) (1).
As indicated above, subsection (b) serves to provide guidance regarding per-
missible alternatives to disclosure of classified information sought by de-
fendants in the discovery process. It should be noted that the Administration's
'proposal is considerably more modest than the approach endorsed by the Ameri-
can Bar Association on the discovery of classified information. The ABA's most
recent standards for discovery and disclosure prior to trial provide that "[d]is-
closure shall not be required where it involves a substantial risk of grave prej-
udice to national security and a failure to disclose will not infringe the con-
stitutional rights of the accused." American Bar Association, Standards Relat-
ing to Discovery and Procedure Before Trial, Standard 11-2.6(c) (August
1978).
e. Section 5. Notice of defendant's intention to disclose classified informa-
tion.-This section requires the defendant to notify the court and the govern-
ment of classified information the defendant expects to disclose either at trial
or at any pretrial proceeding. The Defendant's duty to provide such notice ex-
tends to all documents or testimony that he knows or has reason to believe con-
tain classified information. The defendant is required to provide a brief descrip-
tion of all such classified information within the time specified by the court.
This description need not indicate the relationship of the information to the
defense or the method by which the defendant intends to develop the informa-
tion at the pretrial or trial proceeding. The defendant has a continuing duty
throughout the case to notify the government of additional classified informa-
tion that he expects to disclose. Subsection (b) provides that the court may
respond to violations of the notice requirement by prohibiting the defendant
from utilizing the classified information at pretrial or trial proceedings.
,The notice requirement is similar to the requirement adopted by Congress last
year to deal with sensitive information regarding the victim's prior sexual be-
havior 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
notice fifteen 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 H.R. 4745, is to Identify cases in which
there is a need to hold a pretrial in camera hearing to determine whether sensi-
'tive information may be disclosed by the defendant at trial. The Federal Rules
of Criminal Procedure also contain other notice requirements. Rule 12.1 present-
ly requires the defendant to provide the government with a written notice of his
Intention to offer an alibit 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 in-
tends to disclose is essential to alert the government to the nature of the in-
formation the defendant will seek to reveal and to enable the government to
evaluate whether it needs to obtain a predisclosure ruling regarding the in-
formation. 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 pursu-
ant to the procedures established by section 6 of the Act.
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f. Section 6. In camera procedure for cases ?involving.classified information.-
This section provides a procedure for obtaining predisclosure rulings on the rel-
evance and admissibility of classified :information in criminal cases. The in
camera hearing procedure is similar to,the in camera procedure enacted by Con-
gress last year for pretrial hearings concerning the victim's past sexual behavior
in rape cases. See Rule 412 (c), Federal-Rules of Evidence.
The purpose of the section ~6 procedure is to prevent the unnecessary abandon-
ment of prosecutions by making it possible for the government to secure court
orders barring the,disclosure of -classified information that is not relevant, ma-
terial, and otherwise admissible and to ascertain whether alternatives to dis-
closure of the specific information or measures other than dismissal of the pros-
ecution are available for classified information that is relevant, material, and
admissible. The -procedure is also intended to equip the government to make an
informed assessment prior to trial of the national security 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 (a) provides that the government may move for an in camera pro-
ceeding concerning the use of any classified information at trial or any pretrial
proceeding. The government's motion is to be made within the time specified by
the court, but upon a showing of good cause the court may .permit the govern-
ment thereafter to move for an initial or additional in camera proceeding. The
government may choose not,to seek .a ruling regarding some or all of the in-
formation identified by the defendant in its notice under section 5 or may re-
quest a hearing on information that has not been included in the defendant's
notice.
Subsection (b) establishes a threshold requirement that must be satisfied by
the government in order to obtain an in camera proceeding. First, the govern-
ment must provide the court with the specific classified information as to which
the government desires a -.predisclosure ruling. Second, the government must
demonstrate that the information is properly classifiable under the standard of
the applicable executive order, statute or regulation. The provision of the in-
formation to the court and the demonstration of the harm from disclosure are
to be made by the government ex parte in.an in camera proceeding. The threshold
requirement established by subsection (b) will serve as a judicial check to insure
that the in camera proceeding described in subsection (c) is utilized only when
the government is seeking to prevent the compromise of sensitive national secu-
rity information, information that meets the standard for classification.
Subsection (c) sets forth the procedures to be followed in connection with the
in camera proceeding. Prior to the proceeding, the government is required to pro-
vide the defendant with notice of the information that will be at issue in the
proceeding. Where the government has previously provided the defendant with
specific classified information in connection with pretrial proceedings, the gov-
ernment 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 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
descriptions proposed by the government would be subject to review by the court
in order to assure that they were appropriate to describe the specific classified
information of concern to the government. Where the generic category approach
is employed in the notice, the defendant would proffer any information coming
within the category that he intended to disclose at a pretrial or trial proceeding
and the government would not be required to confirm or deny the accuracy of
the proffered information. Subsection (c) (1) requires that the court rule on
the information at issue prior to the commencement of the relevant proceeding
when the government's motion is filed in advance of the proceeding.
Following briefing and argument by the parties to the court in camera, the
court shall determine whether the specific classified information identified by the
government or any information proffered by the defendant as coming within
the government's generic categories is relevant and material to an element of the
offense or a legally cognizable defense and is otherwise admissible in evidence.
As used in this section, "material" means more than that the evidence in ques-
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tion bears some abstract logical relationship to the issues in the case. It requires
that the evidence be of significance to the defendant's case. The "relevant and
material" standard is patterned on the standard adopted by the Supreme Court
for determining! whether the government must reveal the identity of an in-
formant to the defendant in a criminal case. See Roviaro v. United States, 353
U.S. 53 (1957). As in the informant situation, the significant government interest
in nondisclosure requires that a more demanding standard than relevance be
employed. In the recent rape evidence legislation referred to previously, Con-
gress also determined that a higher standard than relevance was required in
view of the sensitive nature of the information involved. In that context, Con-
gress 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
administration bill does not require or permit the value of the evidence to the
defendant to be weighed against the harm of disclosure to the national security.
Instead, it takes the more modest approach of requiring that the court determine
that classified information is both "relevant and material" before it may be
disclosed in a criminal case.
Subsection (c) (2) provides that the information at issue in the in camera
proceeding shall not be disclosed at the pretrial or trial proceeding unless the
court determines that the information is relevant, material, and otherwise ad-
missible. The subsection requires the court to make a specific, written determina-
tion in order to facilitate appellate review. In setting forth its determination, the
court should identify the specific elements of the offense or theories of affirmative
defense to which the information is found to be relevant and material. Subsection
(c) (3) provides that if the information is determined to be relevant, material,
and admissible or if the government does not elect to contest those issues, the
government may proffer a statement admitting the relevant facts such informa-
tion would tend to prove or submit a portion or summary of the statement. The
subsection requires that the proffered alternative be used by the defendant in
lieu of the classified information unless the court finds that use of the classified
information itself is necessary to afford the defendant a fair trial. This provision
is intended to permit the government to continue prosecutions and avoid dis-
closure of sensitive national security information while assuring that the de-
fendant will be able to use any classified material necessary to afford him a fair
trial. Subsection (c) (4) provides a range of possible judicial responses to be
employed where the court finds that the proffered alternatives to disclosure may
not be used and the government continues to object to disclosure. The court is
afforded broad discretion to fashion an appropriate response in such circum-
stances. It is contemplated that orders under subsections (c) (3) and (c) (4)
will be entered only after opportunity for a hearing on the issues presented.
Finally, subsection (c) (4) provides that the government may exercise its
right to take an interlocutory appeal prior to the effect of any order issued under
the subsection and, if such an appeal is unsuccessful, may avoid the sanction that
would be imposed by electing to permit the defendant to disclose the information.
This provision is intended both to minimize the number of interlocutory appeals
and, more importantly, to enable the government to make the critical "disclose or
? dismiss" decision with a full understanding of the costs involved.
g. Section 7. Interlocutory appeal.-This section would authorize the govern-
ment to take interlocutory appeals from adverse district court orders relating to
the disclosure of classified information. At present, the government is powerless
to appeal such orders 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 United States
Attorney certifies that the appeal is not taken for purpose of delay and that the
evidence is a substantial proof of'a fact material in the proceeding. See 18 U.S.C.
3731. Authorization of interlocutory appeals of orders requiring the disclosure
of classified information is warranted. since such orders generally have even a
more dramatic impact on a prosecution than suppression rulings. This section
limits the government's interlocutory appeal rights to those situations where the
Attorney General, Deputy Attorney General, or designated Assistant Attorney
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General certifies to the district court that the appeal is not taken for purposes
of delay.
The provision requires that interlocutory appeals be expedited by the courts
of appeals in order to protect the defendant's interest in a speedy trial. While it
is expected that most issues will be resolved by rulings prior to trial and thus that
most interlocutory appeals will be taken prior to trial, the section permits inter-
locutory 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 pro-
cedures for interlocutory appeals during trial are patterned closely on provisions
of the District of Columbia Code adopted by Congress in 1970. See D.C.
Code ? 23-104.
h. Section 8. Introduction of classified information.-This section addresses
various issues related to the disclosure of classified information in a pretrial or
trial proceeding. Subsection (a) provides that documentary materials need not
be declassified in order to be placed into evidence. It reflects the view that de-
classification is an executive rather than a judicial function. Subsection (b) per-
mits the use of redacted documents (documents with certain portions excised or
deleted) or the use of portions of documentary materials instead of requiring
that the entire document be introduced into evidence. Subsection (c) authorizes
the court to permit proof of the contents of a document without introducing the
document itself into evidence. These procedures will avoid unnecessary disclo-
sure of sensitive national security information. Subsection (d) provides a proce-
dure 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. This provision serves in effect as
a supplement to the in camera proceeding provisions in Section 6 to cope with
situations that cannot be handled effectively under that section.
I. Section 9. Security procedures to safeguard against compromise of classified
information disclosed to the court.-This section addresses the need for the de-
velopment of adequate procedures to protect against 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 present, the handling of such materials is
often the subject of ad. hoc arrangements developed in each case. Section 9,
which is modeled on section 103(c) of the Foreign Intelligence Surveillance Act
of 1978, calls for the formulation of uniform security procedures for the protec-
tion of classified information submitted to the federal courts.
j. Section 10. Jencks Act exception for classified information.-This section
would amend the Jencks Act, 18 U.S.C. 3500, to provide a limited exception to its
disclosure requirements. The Jencks Act is intended to assist the defendant in
impeaching the testimony of government witnesses by requiring that prior state-
ments of a government witness regarding the subject matter of his testimony be
provided to the defendant. At present, the Jencks Act contains a provision per-
mitting 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. Section 10 of the bill would add an additional exception
covering those aspects of a witness' statement that are found by the court to be
both properly. classifiable and consistent with the witness' testimony. Without
this provision, the government may have to forgo the use of an important witness,
drop a prosecution entirely, or compromise sensitive national security informa-
tion the disclosure of. which will not further the purpose of the Jencks Act to
Assist the defendant by providing material useful for impeachment.
MAJOR DIFFERENCES BETWEEN H.R. 4736 AND. 4745
In focusing on several important differences between Congressman Murphy's
bill, H.R. 4736, and the administration bill, H.R. 4745, I do not want to create
the erroneous impression that the differences outnumber or overshadow the
gimilarities and advantages offered by both bills. I,am firmly convinced that both
of these bills would be a substantial improvement over the status quo. My
emphasis on the remaining differences in approach is intended to urge, the
Committee to resolve, these differences in a manner that I believe will enhance
the effectiveness of the legislation. I shall focus on what I view as substantive
differences rather than technical or drafting issues.
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1. Specification of the standard governing the disclosure of classified information
The Murphy bill, section 102, 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. By
contrast, the administration bill, section 6(c) (2), specifies that the classified
information subject to the hearing procedures may not be disclosed unless "the
information is relevant and material to an element of the offense or a legally
cognizable defense and is otherwise admissible in evidence."
I believe that the approach taken in the Admnistration bill is clearly prefer-
able. It serves what I believe to be the basic purpose of the various legislative
proposals that have been introduced in response to the graymail problem-to
provide guidance, to promote uniformity and predictability, and to facilitate
decisions on the merits in cases involving classified information through pro-
cedures compatible with the defendant's right to a fair trial. As explained in
my previous discussion of the administration bill, the "relevant and material"
standard 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 en-
titled to obtain and disclose the identity 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 informa-
tion "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).
Since the public interest in protecting the confidentiality of classified informa-
tion is at least as substantial as the interest in protecting the identities of law
enforcement informants, the Roviaro decision demonstrates that a more demand-
ing standard than relevance should be employed to govern the disclosure of
classified information. In enacting the recent rape evidence ruie, Congress recog-
nized 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 that the usefulness of the information to the accused be bal-
anced against the prejudice that would be caused by disclosure of the informa-
tion. The "relevant and material" standard of the administration bill would
eschew such a balancing approach which could preclude the accused from dis-
closing evidence important to his defense and would merely require that the
classified information be significant to the defense of the case in order to be
'disclosable at trial.
2. Jencks Act modification
Section 10 of the administration bill would amend the Jencks Act (18 U.S.C.
3500) to provide a limited exception to its disclosure requirements. The Murphy
bill contains no comparable amendment and thus would leave the Jencks Act as
it now stands.
Absent the inclusion of a provision such as section 10 of H.R. 4745 or section 10
of Senator Biden's bill (S. 1482), the government may be needlessly forced to
forgo the use of an important witness, drop a prosecution entirely, or compro-
mise sensitive national security information. The following hypothetical illus-
trates the problem that may arise under the Jencks Act. Suppose a government
agent who witnessed the transfer of a highly classified document to a member of
a hostile foreign intelligence service prepared a statement describing the events;
and in this statement noted that the person receiving the document was the
superior of a CIA agent who the United States had planted in the foreign intel-
ligence service. Under the Jencks Act, the United States presently would be
required to choose between desclosing the existence' of the CIA agent to the
defendant (another agent of the foreign, intelligence service or aperson coop-
erating with that organization) or not calling the eyewitness to the transfer of
the document who is critical to the successful prosecution of the case.
The provisions in the administration bill and the Senate bill would prevent
such situations without undercutting the important purpose served by the Jencks
Act. The Jencks Act is intended to assist the defendant in impeaching the testi-
mony of government witnesses by requiring that prior statements of a 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
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matter of the witness' testimony and withheld from the defendant. Section 10
of H.R. 4745 would add an additional exception covering those aspects of a
witness' statement that are found by the court, to, be- both properly classifiable
and consistent with the witness' testimony. The 'defendants thus, would not be
deprived by H.R. 4745 of any material useful-for impeachment:
Under the Murphy bill, the government would be forced to make disclosure of
highly clasified material in a witness' statement despite the-fact that the classi-
fied items-names of CIA agents or characteristics of weapons systems-con-
sisted of details that were wholly consistent with ' the witness' testimony and
useless for impeachment. Moreover, the disclosure, of such information would
serve absolutely no purpose since the Murphy bill would require notice
and a hearing before the defendant could disclose the classified material con-
tained in the witness' statement at trial. Any, material that the trial judge would
permit to be excised as consistent with the testimony of the government witness
would presumably be found nondisclosable by the judge under the bill's pre-
disclosure hearing procedures.
3. Bill of particulars and reciprocity provision
The Murphy bill, in section 107, contains. two requirements that are not in-
cluded in the administration bill. First, section 107,(c) requires that whenever the
government requests a pretrial proceeding it must provide the defendant with a
bill of particulars as to the portions of the indictment or information which-the
defendant identifies as related to the classified information at issue in the pre-
trial proceeding. Second, section 107(a) requires that, where the court determines
under the hearing procedures of the bill that classified information may be dis-
closed by the defendant, the government must provide the defendant with "the
information it expects to use to rebut" the classified information and "the iden-
tity of any witness it expects to use to rebut the particular classified informa-
tion." Apart from the other problems presented by these provisions, I am con-
cerned that they will serve to undermine the basic purpose of the legislation by
providing defendants with additional incentives to press for the disclosure of
classified information.
I question the need for the bill of particulars section. Rule 7(f) of the Federal
Rules of Criminal Procedure now permits the defendant to seek a bill of par-
ticulars in any federal criminal case. Whether a bill,of particulars is appropri-
ate depends on the nature of the indictment or information filed by the govern-
ment 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 dis-
close 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, if the pro-
vision is retained, it should be amended to make clear that the court will super-
vise the process applying the standards of the current, rule -and, will determine
the adequacy of the particulars provided by the government!
I also question the need for and the desirability of. the requirement that
rebuttal evidence and witnesses be provided. to the defendant whenever. classified
information is found admissible under the predisclosure hearing procedures.
There is, in my view, no legal requirement1 that such a provision accompany the
type of pretrial'notice and hearing procedures contained in- the various graymail
bills. The Supreme Court has ruled in the alibi notice context that due -process
requires that if the defendant is compelled to give advance ,notice of his inten-
tion to present an. alibi defense the government must provide 'the defendant with
advanced notice of its refutation of the alibi defense. Wardius, v. Oregon, 412
U.S. 470 (1973). In Wardius; 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. The various classified
information bills are not intended- to enhance discovery of, information to facil-
itate preparation for trial but are designed to provide procedures for orderly
pretrial determination of, issues involving the use of classified. information at
trial. In this respect, the bills before this committee are comparable to the rape
evidence legislation and are unlike the alibi notice rule: In the rape evidence
legislation adopted by Congress last year, there is no requirement that the gov-
ernment disclose its rebuttal evidence or that it provide a bill of particulars.
That precedent should be followed here. Moreover, even if there were a legal
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need for some form of rebuttal evidence provision, there would be no reason for
the disclosure of the identity of government witnesses since the bill does not
require the defendant to identify his witnesses in the pretrial hearing process.
I am also concerned about the rebuttal evidence provision as a matter of
policy. In view of the substantial discovery rights of defendants in criminal
cases, I question whether there is a need for additional disclosures mandated
as part of this bill. It should be noted that most of the classified information
that will be at issue in the pretrial hearing process will have been provided to
the defendant by the government as part of the discovery process. In addition,
in contrast to the alibi situation, it is not clear what is covered by the require-
ment that "the United States provide the defendant with the information it
expects to use to rebut the particular classified information at issue." Unless
the trial judge is provided with discretion to guide the government as to the
scope of its obligations or the sanction for non-disclosure 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. Finally, if the witness disclosure aspect of section 107 is retained,
it should be modified to authorize the court to permit the withholding of names
in unusual situations where there is reason to believe that such disclosure would
endanger the witness.
4. Initiation of the pretrial hearing process
initiation of the pretrial hearing process. Section 6(b) of the administration bill
requires the government. to demonstrate to the district judge that the informa-
tion meets the applicable standards for classification. Section 102 of the Murphy
bill, by contrast, requires only that the Attorney General, Deputy Attorney
General, or a designated Assistant Attorney General make a written request
for a hearing. Under both bills, the classified information of concern to the
government would be disclosed to the court prior to the pretrial hearing.
I believe that the approach adopted by the administration bill provides an
important additional assurance that the hearing procedures are employed only
when sensitive national security material is actually involved. While I recognize
that there is a concern that disclosure of the basis for the classification might
prejudice the admissibility determination, this concern is met in the adminis-
tration bill by the establishment of a standard that does not call upon the judge
to balance the sensitivity of the classified information against the importance
of the information to the defense.
5. Introduction of classified information
. Section 8 of the administration bill contains three provisions governing the
introduction and proof of the contents of classified documents at trial that are
not present in the Murphy bill. These provisions would serve to protect unneces-
sary disclosure of classified information at trial without undercutting the rights
of criminal defendants. The most important of these provisions, subsection 8 (b),
would authorize the court to prevent unnecessary disclosure of classified infor-
mation 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 photograph introduced in a criminal case. In the recent espionage prosecution
in the Kampiles 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 unneces-
sary exposure. Section 8(b) of the Administration bill would permit the court,
over the objection of the defendant, to order that this approach be followed in
future cases. The effect of the provision would be to protect the most sensitive
aspects of classified documents-aspects that the government would otherwise
avoid revealing in presenting its case at trial. The defendant's rights would be
protected. 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 be disclosed as a relevant and material part of
his defense.
Subsection 8(c) would also serve to avoid unnecessary disclosure of classified
information. This provision would permit the government to prove the contents
of a classified writing, recording, or photograph without introducing 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 dis-
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closure of classified information could be minimized. Absent the enactment of
subsection 8(c) the best evidence rule (Rule 1002 of the Federal Rules of Evi-
-deuce) would appear to preclude this approach. While subsections 8(b) and 8(c)
serve similar purposes, they are not redundant. Subsection 8(c) would reach
cases where it is impractical to delete the sensitive material from the document
.and subsection 8(b) would be necessary where the government desired to intro-
duce a classified document into evidence. As with subsection 8(b), the defendant
would be free to introduce the classified writing, recording, or photograph in-
volved if it is material to his defense. Where, however, the defendant has no
interest in or no basis for introducing the document itself, section 8(c) would
prevent the needless disclosure of classified information.
Section 8(a) is intended to redress a more limited problem confronted 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 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.
66. Protective provisions governing disclosure, of classified information to
defendants
Section 4 of the administration bill and section 109 of the Murphy bill both
require the district court to enter appropriate protective orders to safeguard the
,classified information made available to defendant. The administration bill goes
beyond the Murphy bill to list seven types of protective conditions that might be
incorporated by the court in fashioning an appropriate protective order in par-
ticular cases. I believe that this aspect of the administration bill will provide
helpful guidance to judges charged with formulating protective orders, will pro-
mote a uniform approach to the safeguarding of classified materials, and will
serve to insure that orders issued under the bill will provide adequate security
conditions.
7. Imposition of detailed reporting requirements
Section 202 of the Murphy bill would require the Department of Justice to file
a written report whenever "the United States decides not to prosecute any indi-
vidual for a violation of federal law because there is a possibility that classified
information will be revealed." The written report is to' include (1) "findings de-
tailing the reasons for the decision not. to.prosecute (2) "the classified infor-
mation which the United States believes might.be disclosed"; (3) "the purpose
for which the information might be disclosed"; (4) "the possibility that the
information would be disclosed in the event of a prosecution"; and (5) "the
possible consequences such disclosures would have on the national security." The
report is to be provided to the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on Intelligence of the Senate.
The Department of Justice opposes the inclusion of such a reporting provision.
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 involved 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 re-
quirement 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 this committee that
would warrant the type of reporting requirements in H.R. 4736. It is my under-
standing that the Department has undertaken in the past to brief the committee
on an informed basis on aspects of particular cases. I would respectfully suggest
that a continuation of such a flexible, informal process is more in keeping with
the proper roles of two co-equal branches of government than is the regime envi-
sioned by section 202.
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 infor-
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-mation 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
Committee's concerns in this area can be met without the bill's sweeping report-
ing 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 in-
formation 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 sensitive that
;protection of its confidentiality overrides the strong interest in prosecuting viola-
tions of federal criminal laws. Without denigrating the care with which such
reports would be handled by the committee and its staff, I believe that the com-
:mnittee should pause to carefully reflect whether such reports should be routinely
required.
STATEMENT OF PHILIP B. HEYMANN, ASSISTANT ATTORNEY GEN-
ERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, ACCOM-
PANIED BY RONALD STERN, SPECIAL ASSISTANT TO THE
ASSISTANT ATTORNEY GENERAL -
Mr. HEYMANN. Thank you very much, Mr. Chairman. Thank you,
Mr. McClory.
If the rather long and detailed statement that I have presented can
be put in the record, Mr. Chairman, I will try and summarize it as
we go through and shorten the time.
Mr. MURPHY. Without objection, so ordered.
Mr. HEYMANN. Thank you.
At the outset, I would like to myself thank and commend the Chair-
man and Congressman McClory and Congressman Mazzoli for the
diligent and constructive efforts they and the staff working under
them have undertaken in regard to the graymail problem. Following
Senator Biden's pioneering efforts last year, this committee held hear-
ings in January that focused additional attention on the need to im-
prove procedures for criminal cases involving classified information.
Since that time the committee and its staff along with Senator Biden,
the Justice Department and the ACLU have worked to devise legis-
lation that would provide the necessary procedures.
My statement, Mr. Chairman and Mr. McClory, will be divided
into three parts. I would like to'begin by describing the need for the
legislation, then talk in rather general terms about the major ingredi-
ents of our bill and of your bill, Mr. Chairman and Mr. McClory, and
then I would like to focus on the differences which in many ways are the
crucial things for us to be discussing.
The three of us were together at a session where the introduction, of
your bill, Senator Biden's bill, and the Administration's bill were
announced, Mr. Chairman, and you and I said very much-the same
things on that occasion. The.fact of the matter is that three things
have to be done in this area. The Government has to be able to try
cases, and that means it has to be able to-try espionage cases, and it
has to be able to try cases against high Government officials who hap-
pen to have access to large amounts of national security material. In
both those categories, an inability to try cases can be very serious-
in one case to our national security and in the other instance .to the
credibility of the Federal Government and its willingness., to police
its own activities.
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Second, the Federal Government must protect important trial rights..
Defendants cannot be seriously prejudiced in any criminal trial. I agree-
with what Mr. McClory just said, if I understood him correctly, we
can't turn the need for protecting defendants' rights into a delicate-
balance of game advantages. There is no effort in this case-of the Fed-
eral Government, the prosecutorial arm, to use graymail as an effort to,
gain trial advantages. We don't want that. We are not thinking in those-
terms, but rather in terms of the enactment of legislation that will
allow us to conduct trials while being fair to the defense. The third'
important thing is to protect essential national secrets. The procedures.
that will allow us to do all three can't be stopped by what I honestly
believe to be an often almost nitpicking concern for perfect balance-of--
trial advantage. We will be generous to the extent that it is reasonable,.
trying to preserve that balance. If the balance is tilted in a minor way
one way or the other, it is less important than that we be able within
reason to try defendants in these two important categories fairly, pro-
tecting their rights and at the same time protecting those secrets that
it is essential to protect and not others.
As you, Mr. Chairman, said, on the occasion of the announcement of
these bills, sometimes the competing interests can't be reconciled, and
we all know what happens when they can't be reconciled. If the Gov-
ernment will not reveal the secret, a fair trial still must go on, and if'
there cannot be a fair trial without the revelation of the secret, the case,
must be dismissed. There is no dispute about that.
What is interesting about the piece of legislation that you have intro-
duced and that we have asked Chairman Rodino to introduce, and that-
Senator Biden has introduced, is that there is a very large extent to-
which the problems that we are facing here are problems that have no,
inherent necessity. There is no policy that adequately justifies the diffi-
culties we are all making for ourselves. Under present procedures, deci--
sions regarding the relevance and admissibility of evidence are nor-
mally, customarily, made as they arise during the-course of trial. There-
is no good reason why some of these decisions cannot be made before
trial. They are. now, for example, made before trial in the instance of
certain evidence in a rape case-as to the woman's prior sexual conduct.
Congress -passed a statute doing that for very good reason last year, so
that it could be done not in front of-so that those rulings could be.
made prior to trial without destroying. a woman's reputation in order-
to bring?a rape case.
If these rulings are made during trial and not prior to trial, which is
customary but of no policy or fairness importance, several things;
happen. One,, the Government, has no way of knowing whether the-
defendant intends to rely on important national secrets; and second,.
the Government has no way. of knowing whether, if the defendant
wants to bring those secrets out, they are in fact admissible and rele-
vant-,at trial. Not knowing;. the Government must guess and make its
decision whether to dismiss or not at a stage before, in a world of'
uncertainty, as Mr. McClory just said, and as you said, Mr. Murphy, at
our announcement.
If we can simply resolve these uncertainties, which I believe we can,
without any cost to fairness, the trials of figures who have national
security secrets in an authorized or unauthorized way can go forward..
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? appeal provision that allows an appeal by the Government in this
-circumstance just as it can now appeal from an order to suppress
evidence if issues are resolved against the Government.
We are talking about modest procedural changes in all of the bills.
We are talking about things that are not new, and we are talking about
things that I believe are plainly fair.
Let me take each of those categories just for about 2 minutes each
and talk about the major points to be-noted.
The provision in the administration's bill dealing with discovery
lists a set of possible alternatives that a court may use rather than
order discovery of a highly secret Federal document. We believe that
each of these alternatives are now permissible under law, under Fed-
eral Rule of Criminal Procedure 16. I believe the chairman's bill does
not spell out the alternatives, and I think the Senate bill does not spell
out the alternatives. We spell them out because we want to call them
to the court's attention. We do not think we are granting new powers
in this area. We believe those powers are already there under the
present Federal Rules of Criminal Procedure.
The price of not having them go forward I think we all know. The
price is that the American public comes to distrust the system, and that
a committee such as this committee can rely less on the checks that exist
in the national security and intelligence areas. The costs in the espio-
nage area are obvious, that in some cases there can be no prosecution,
despite the importance and the moral blameworthiness of the conduct.
Let me turn from the need for 4egislation?.in'this area 'to what the
,major provisions are, the major provisions of your:bill and the major
provisions of our bill, because they are indeed very similar in most
respects.
I'll start by describing them in terms of our bill, and then later con-
itrast the bills. The key provisions of H.R. 4745 would create a pro-
.cedure for pretrial rulings and appeals-and -this is also of course true
of the chairman's bill-on whether classified information may be dis-
closed by the defendant at pretrial or trial proceedings. That is the is-
sue I have just been discussing.
These provisions would prevent the premature and unnecessary
abandonment of prosecutions in the face of either malicious graymail
threats or legitimate uncertainties. It would do this'by obtaining court
orders barring the disclosure of inadmissible classified information
or ruling that particular classified information should be admitted.
When classified information is determined by -the court to be ad-
missible, the bill provides alternatives to disclosure of the specific
classified items and it provides measures other than dismissal if there
is no alternative that the Government can accept. The witness' testi-
mony might be struck, for example, or a particular count of the in-
,dictment mightbe struck.
Each of the provisions I am describing, Mr. Chairman, has prece-
dents. Each of them has been done in other areas. This is not a na-
tional security exception to fair trial bill. It does not affect fair trial
as a matter of principle. The provisions have precedents or close
analogies in the areas such as those of domestic informants and the
'evidentiary rules for rape cases.
Each of the bills has discovery provisions. Each of the bills has an
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I would like-yes. ' :
Mr. MCCLORY.' May- I interrupt? If they are already there, what
do you want to write it into the statute for, too?
Mr. HEYMANN. Mr. McClory, a number of the provisions of the-
statute empower judges explicitly to do, things that we now think:
they have the power to do. For example, Judge Lacey in the Chernya--
yev and Enger trial in New Jersey did a number of things that the-
statute empowers a judge to do, and the judge in the Kampiles case-
in Indiana did, too. Other judges have declined to or doubted their-
power to act. One of the things this bill will do is clarify the power-
of judges in areas where we believe they have the power, where judges
have exercised the power and invite them to consider alternatives
that are there for them to consider. If the question were, could a judge'
do this without our discovery provisions, the answer is yes. Is he as
likely to do it if there isn't a statute simply inviting him to consider-
his powers here, the answer is no, he is less likely to do it.
Mr. MCCLORY. Are there different rules in different circuits which,
would be reconciled by embodying the language in the statute?
Mr. HEYMANN. There is certainly a difference of interpretation at
the trial court level. Whether there are different court of appeals rules,..
I'm not sure.
Incidentally, everything that we are proposing here in the dis-
covery area is far more modest than what the ABA has itself pro-
posed last year. The ABA's most recent standard for discovery and'.
disclosure prior to trial provide that "disclosure shall not be required'
where it involves a substantial risk of grave prejudice to national se-
curity and a failure to disclose will not infringe the constitutional'
rights of the accused." We are asking for less than the ABA itself'
proposed.
The system for getting pretrial rulings not on discovery of evi-
dence, not on what we have to turn over to a defendant prior to trial,.
but on what the defendant may be able to introduce at trial is quite-
similar in the hills. There has to be a notice requirement. The defend-
ant has to notify us in advance that he intends to introduce particular
evidence. The bill includes that. I would simply like to point out. ?
that that is precisely the same type of provision that was passed last
year with regard to evidence of a woman's former chastity in a rape-
case. The rape evidence statute, which created rule 412 of the Fed-
eral Rules of Evidence, requires the defendant to provide written
notice 15 days prior to trial of any evidence of specific instances of
the alleged victim's prior sexual behavior which the defendant in-
tends to offer at trial. It is a familiar, at least precedented type of-
provision.
On the basis of that notice, there is an in-camera hearing procedure-
which again is wholly analogous to what Congress passed last year-
with regard to evidence of a rape victim's prior sexual conduct. Again
I call your attention to the fact that what we are proposing is very
much the same as rule 412 (c).
The' purpose of the in-camera proceeding is to" find out whether the'
material is admissible, find out whether the defendant wants to use
it. It is to prevent, in short, the unnecessary abandonment of prosecu-
tions by making it possible for the Government to determine pretrial
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19
whether evidence that is a national secret will come out. It will allow
us to make intelligent decisions.
There is a difference that I should point out on this question of
admissibility of evidence between our bill and the bills introduced by
Chairman Murphy and Senator Biden. We would require prior to any
special pretrial determinations that the Government establish to the,
satisfaction of the judge that the matter we are trying to protect is
properly classified. That has a certain cleanness and it has a certain
nonarbitrariness about it. I do not regard these pretrial proceedings
that, we are all talking about as substantively affecting defendants.
I do not think they affect substantial rights. But they do change
things. They do change the order of a trial. We would require the
judge to be satisfied that what we were protecting was properly classi-
fied information before taking the step of altering the timing of
consideration of these issues.
I understand the argument on the other side. The argument on the,
other side is if the judge reaches that determination, he may be some-
how or other prejudiced. That is a determination that he will, of course,.
make ex parte because in an espionage case we will not want to reveal`
the extent of the secrets we are protecting to a defendant who we be-
lieve is a spy. However, we believe that judges are made of a little,
sterner stuff than is reflected in the concerns of those who don't want
the judge to address this issue early.
In any event, the most important fact here, and one that is true to,
some extent in all bills, is that it is important that a judge who is rul-
ing on relevance and alternatives has to have a certain amount of in-
formation before him as to what information the Government is pro-
tecting, and why.
The particular alternatives that form an important part of each of
these bills are the alternatives that the judge can invoke to substitute
for highly classified national security information a summary, a state-
ment, or something that does not reveal precisely what it is the Gov-
ernment wants to keep secret but which does protect a defendant's
rights.
Let me focus just for a sentence or two on the importance of this..
Very frequently in these cases, what is crucial in terms of a secret, one,
of the three concerns that we are trying to reconcile here, is highly
specific information. What is crucial in terms of a secret is what is the
name of the CIA agent, what are the precise characteristics of the?
weapons system, what is the location of a station. What is crucial for a
fair trial frequently does not involve those specific matters at all. What
is crucial. for a fair trial is that the jury know that a CIA agent urged
the defendant to take an action, if this is true, or that the jury know
that the weapons system was of a certain sort.
Mr. MURPHY. How about just a memo that it exists, the technology
that it exists, and not what it does specifically.
Mr. HEYMANN. That is correct, absolutely, Mr. Chairman.
What we are finding here is that there is a substantial congruence or
there is a possibility of a substantial congruence between our desire to
have trials without revealing national secrets and the absolute neces-
sity of having fair trials. That congruence lies in the fact that a judge
can order a substitute statement such as the Government stipulates that
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a CIA agent on this occasion urged Ronald Stearn to do the illegal
act. That fully will satisfy the fairness of trial requirements. That
will show the conditions under which the defendant acted and, at the
same time, it will not reveal the name of the CIA agent which has
really nothing to do with the fairness or propriety of convicting and
punishing the defendant.
Mr. MURPHY. Would there not be a possibility-of entrapment there
of some kind, where a defendant could be entrapped into a situation,
not knowing that he is jeopardizing national secrets or classified
information ?
Mr. HEYMANN. Mr. Chairman, that issue, for example, comes up
domestically with regard to informants. The Government has a privi-
lege to protect informants unless it is absolutely necessary to disclose
their identities. Sometimes questions of entrapment come up. And
someimes, not the majority of cases, in a minority of cases it is neces-
sary to reveal the name of the informant in order-to fairly deal with
the entrapment issue, but in most cases it is not necessary. We are urg-
ing; the same thing here, exactly the same thing.
Mr. MCCLORY. Could I ask one more question, Mr. Chairman, at this
point?
Mr. MURPHY. Sure.
Mr. McCLORY. You said that you thought it was important at the
time that the defendant raises a question, or I guess either side raises
a question as to the classified nature of the evidence'that one or the
other party wants to introduce, for the court to determine if the mate-
rial is properly classified.
Now, it seems tome that in the Murphy bill if the Attorney General
says that it is classified, it is classified, but you are going to then trans-
fer the question as to who determines the classified nature of material
front the Attorney General, .from the Government, to the court.
Do you think that is a good idea?
Mr. HEYMANN. No; we don't want to do that, Mr. McClory. What we
:are doing is something close to that. The material would remain classi-
fied whatever the judge said in the case. The executive classifies the
material and it will remain classified whatever the judge says. We,
however, would not trigger a special judicial proceeding without the
judge finding that there exists the type of national security concern
which in fact warrants classification. In other words, we would main-
tain that the executive classifies, and only the executive classifies.
Whatever the judge says, it would be a classified document. However,
these special procedures would not go into effect, which are after all
judicial procedures, unless the judge were satisfied that the situation
was an appropriate one.
Mr. MCCLORY. But under your bill, the judge is going to determine
whether or not the disclosure of the information is dangerous to the
national security, and that is, from now on, it is going to be a judicial
decision in that type of criminal case.
Mr. HEYMANN. Only in that context, that's right, only in the judi-
cial
Mr. MCCLORY. And that's not in the Murphy bill is it?
Mr. HEYMANN. It is not. It is a difference between our bill and the
Murphy bill and the Biden bill. There are two arguments against this,
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Mr. McClory. One is the one you are making that, although it is only
for purposes of a judicial proceeding, judges shouldn't be deciding-
classification-type questions even in that setting, though of course
they do under the Freedom of Information Act to some extent.
The other argument is the ACLU argument that the chairman was.
referring to that this will prejudice the judge, that the judge will, by
reaching a conclusion. that this is really a national security matter,.
have already gotten himself in a national security framework and will
be thinking in national security terms rather than in criminal trial
terms.
We don't want that to happen. We do frankly want, and I think each.
of the bills allows this, the judge to have some understanding of what
are the national security concerns. The reason for that is very simple.
If the judge understands the national security concerns, then he can
in the process of this hearing say, well, look, a fair trial could be had.
if the Government will only stipulate that the following was true, and
leave out the name of the CIA agent, or leave out the weapons charac-
teristic. If the judge knows what it is we are trying to protect, he can
play a creative role in developing alternatives that preserve a fair trial
and preserve the secret at the same time. If the judge is not informed.
as to what it is we are trying to protect, he will be simply bewildered.
He will be confused and bewildered.
Just to take an example of that, one of the types of secrets we have
problems with disclosing is information that has come from a foreign
intelligence agency under ground rules where we have promised the
source will never be disclosed. In that type of situation, the only
thing that is secret is that it has come from Greenland's intelligence
agency. If the judge doesn't know that that is the secret we are trying
to protect, the hearing will be some kind of Marx borthers version of
"A Night at the Opera" because be will be trying to guess, trying
to figure out what we are arguing about, whereas there will be an easy
solution. The easy solution will be to strike out where the informa-
tion came from, which is of no relevance to the defense, and give them
all the rest. That is an easy solution that protects fair trial and protects:
the secret, but the judge has to know what the secret is.
I would like to get to the differences and get the questions and
answers, and I have been going on a little bit too long. We all have an
appeal provision. The appeal provision is crucial. That, too, adds
certainty. I think there is no dispute about the fact that the inter-
locutory appeal is only a Government appeal. The reason for that, if
there is any confusion, is because, of course, the defendant has a full
right of appeal after trial, and that is a better right of appeal, tacti-
cally, from the defendant's point of view.
The last point to be made, and then let me inst compare the bills
briefly and turn to you people for questions. We have an exception
to the Jencks Act, one that we think is fair but we know will be a.
source of major dispute on both sides of the Hill.
Our exception to the Jencks Act allows a judge to delete properly
classified information if he finds that it is plainly consistent with the
witness' statement. The purpose of the Jencks Act is to allow de-
fendants to use inconsistent statements to cross examine a witness..
Our provision would say where the judge finds that an item is highly
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secret and is plainly consistent, he can before turning a Jencks Act
statement over to the defendant, delete that item. That is one of the
differences. Now, let me run over the major. differences and I will get
back to the Jencks Act as I mention the major differences between
the chairman's bill and our bill.
In doing that, let me be clear that I think the similarities are much
greater than the differences, and that either bill would be extremely
helpful. I am going to emphasize why we think ours is better-and
we do prefer ours and think ours is better-but either bill would he
extremely helpful. It is a happy situation where we, find that the
differences are considerably less important than the similarities.
One place in which we are different, is'that we set forth a standard
of admissibility, and our standard says relevant and material. We are
not trying to sneak in something by that language. We are intention-
ally trying to bring in a standard of admissibility for classified in-
formation that is just a touch or a half-step higher than relevance.
Almost anything can be relevant. Relevant just means it slightly
tends to prove or disprove something. Anything that to whatever slight
degree tends to prove or disprove something is relevant. We purposely
pick a term "material" which is often used as very similar to "relevant"
but is just thought to be a touch more substantial. That is the meaning
we give it.
The standard we would use-and it seems to us to make very good
sense-is the standard that is used with regard to informants. If a
defendant wants to obtain the name of an informant and introduce it in
trial, or question an informant on a matter of entrapment, the de-
fendant will not be allowed to question a Government agent on the
stand about who was the informant and what was the informant's
name unless the defendant establishes something a bit higher than
some relevance.
. If that is true of a narcotics informant, it seems to me that it ought
to be true of a CIA informant. I don't see any difference between the
foreign informant and the domestic informant. The Supreme Court
law is clear, that if defense counsel asks a narcotics agent, who was the
informant, what was his name, where. does he come from, what was
he doing, where does he live, he cannot get that information unless he
shows something more than that it may be relevant.
The Supreme Court has discussed it at length in the Roviaro case.
We think that the same considerations or considerations of at least
equal weight apply here. They apply whether we are dealing with
CIA agents or sources or locations of stations or the nature of weapons
systems. I know that there -would be those who would say that much
weightier considerations are at stake here than in protecting
informants.
In enacting the recent rape evidence rule, Congress went much fur-
ther. It said that before evidence of prior sexual conduct could come
in, there would have to be a balancing, and a balancing that considered
the prejudice to the victim versus the usefulness at trial. We are not
asking for a balancing. We are asking for something much less, but
something a touch, a half-step more than mere relevance. It would
give the judge a little bit of discretion to say, yes, I can't say that
this secret is wholly irrelevant, but really, Mr. McClory, it doesn't
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have much to do with your case, and I'm not going to let it in, some-
thing like that. .
Now, in the Jencks Act situation, we are likely to come up against
cases like the one that we put in the testimony. Suppose a Government
agent who witnessed the transfer of a highly classified document to a
foreign intelligence agent prepare a. statement. If he is a Government
agent, he will prepare a statement describing having seen the transfer
of a highly classified document, and let's say that he is either honest,
-direct, open or foolish enough to put in that statement that the person
who received the document is the superior of someone that we have
reporting to us from the foreign embassy. For instance, that it was the
first secretary of such and such a country's embassy who received the
document, and that guy happens to be the immediate superior of Peter
Smith who has been giving us useful information.
If that happens, if that directness and openness takes place, we will
have a statement that under present rules would have to be revealed
to the defendant. Remember, in espionage cases we are talking about
'defendants who we believe are giving secrets to the enemy. The state-
ment would have to be revealed to such a defendant if we wanted to
put the witness'who had observed the transfer on the stand.
That is a heavy price to pay. The question is, does any requirement of
fair trial justify placing that heavy price on us? It won't come up
often, but when it comes up it is a heavy price, and that is the only time
when the fair trial issue comes up.
We say that there is no reason -to pay such a price. The purpose of
the Jencks Act-and it is not a constitutional rule, it is not imposed on
the States ; it is a statute and a rule that the Supreme Court has imposed
as wise but subject to congressional modification-is to give the ma-
terial for cross examination to a defendant. We say that if there is no
inconsistency about a particular fact, such as where the recipient of the
-document happens to be the boss of somebody who has been giving us
information, there is no inconsistency in anything that was said on the
witness stand with that fact. If that fact is highly secret, as it is in the
-case I hypothesize, then the judge ought to be able to say, look, you will
.get the full statement but we are going to strike out what is plainly
consistent and of no use to you in cross examination. We are going
to strike it out and you don't get that.
The judge already has the power, again in the theme that nothing
here is unprecedented, the judge already has the power to strike out
anything that he finds unrelated to the witness's testimony at trial. In
the example here the information is related; it is just that it is not
inconsistent. It is not the material for impeachment. If we give it to
the defendant, under your bill, Chairman Murphy-this is a little com-
plicated, as I say it, and I apologize for that-under your bill we would
have to give it to the defendant, and if we gave it to the defendant,
your bill would trigger the following events happening:
The defendant, if ' he wanted to ask questions about it, about this
'individual in some country's embassy who is reporting to us, if he
wanted to ask cross examination questions on it, he would have to give
us notice. Your bill also requires notice. The judge would then decide
whether those questions really have any bearing on the trial, and he
would almost certainly decide they have no bearing on the trial be-
,cause it has got nothing to do with the case.
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Under your bill, the defendant in an espionage case-someone wet
are accusing of being a spy-would get information that is very secret,.
and then the judge would forbid him to use it at trial, to make it.
public, but the cat would already be half or two-thirds out.of the bag...
We recognize the popularity of the Jencks Act and the fight we are
biting off, but we are proposing only a minor modification in the
Jencks Act, and you will hear a lot of testimony saying this is out-
rageous and we don't like the Jencks Act. We are not attacking the
Jencks Act. We are trying to make sense of a situation where we-
think otherwise it is not very sensible.
Mr. MCCLORY. Could I ask this question for my own information?'
I am not too familiar with the Jencks Act.
Does the Jencks Act require the disclosure of information without.
notice, or does the defendant have to first of all request the prosecution
to list any witnesses or evidence which might take him by surprise?
Mr. HEYMANN. Well, I think I have it here, Mr. McClory. I am.
quite sure there is a requirement of request, but by now it has become
so traditional that in any case we know that we automatically have-
to turn over any witness's prior statements to the defendant at least
at the time the witness testifies and generally earlier than that.
Mr. MCCLORY. Whether the defendant asks for that information
before the trial or not?
Mr. HEYMANN. There is a statutory requirement of request, but it
is routine. It is just done automatically.
Just one or two others. On reciprocity, we are worried, Mr. Chair-
man. We are worried about the technicalities of the reciprocity provi-
sions of the chairman's bill. There are no such provisions in our bill.
There are two in the chairman's bill. One of them requires a bill of
particulars as to the matter that the defendant may reveal, a bill of
particulars specifying what part of our charge against the defendant,
whether he be a high Defense Department official or an espionage
defendant, what part of it, you know, detailing what our charge is-
that this may relate to.
The problem here is nobody knows what we are supposed to do in
providing more detail. There is already a requirement in the Federal
rules of criminal procedure that we provide a bill of particulars wher-
ever the judge finds it useful and sensible for the defense. We are
worried that that part of the chairman's bill will not be read as leaving
the judge wide discretion to do whatever he thinks is fair and recipro-
cal, but will somehow or other impose 'an undefined obligation to
become more and more specific. Bills of particulars are something that
take a lot of forms, and we don't quite know what we are being re-
quired to do here.
There is another part of the reciprocity, provision which requires us
to tell what our rebuttal will be and who the witnesses will be. We are
not at all sure-I want to give you, some examples that indicate why-
what looks like a fair procedure telling us to tell what our rebuttal
will be and what the witnesses will be may turn out to be a very unfair
one. If you want a reciprocity provision, I would urge the committee
to write it in general terms, leaving it to the judge to do what he con-
siders fair in terms of reciprocal disclosure. Anything else, anything
that looks like an absolute rule has difficult and unforeseen
consequences.
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Let me spell out my worries on the reciprocity provision. Reciproc-
ity, in general, is not always required. That is a good starting place.
In the rape evidence rule, the defendant is required to bring forward
his evidence as to prior sexual conduct of the victim of rape, but there
is no reciprocal obligation of the Government at that point to bring
forth its rebuttal evidence. It is not a universal requirement that you
.give reciprocity here. It is a rule of the game and you do it if you think
? it is sensible. We are not talking about basic fairness.
If you move to, basic fairness in questions of reciprocity, remember
that in most cases the defendant is going to be tendering a document
we gave him in discovery as something he wants to use at trial. The
notion of reciprocity here is that the defendant is revealing his secrets,
his case, and now the Government ought to respond by revealing its
secrets, its case. In most of the situations we are dealing with here,
'the defendant is going to have obtained from the Government during
discovery documents which are secret. There will then be this pro-
ceeding where the defendant will then say I want to use this document
that the Government gave me at trial. If the judge rules that it can
be used at trial, your bill, Mr. Chairman, and Senator Biden's bill then
requires us to come in and reveal more information, anything that
goes to show we are going to rebut it, in fairness to the defendant. But
remember, the document that the defendant revealed came from us.
It is our document that we gave to the defendant to help his case. It is
our information that was given to the defendant in fairness to him
as required by law that he has now said he would like to use. It hardly
seems that equity requires us then to provide an additional amount of
information to show how we are going to try to rebut the effect of our
own document.
But let me go to practical difficulties.
Mr. MuRPIIY. Nell, let's deal with your example. Let's say in an
espionage case or a leak of information case, and the document is a
transcript of a wiretap or an intercept of a message by the defendant
that brought him into this difficulty, and the defendant's theory is
that maybe this was not my voice or it was not the defendant who made
the call or participated in the conversation regarding national secu-
rity information. Don't you think it would be fair to let him listen
?
to a particular recording, the interception?
Mr. HEYMANN. The present Federal Rules of Criminal Procedure,
Mrr. Chairman, require us, wholly without regard to this provision,
to turn over to the defendant any documents we propose to use at trial,
any documents that we can see would be helpful to his defense-that is
the Brady obligation. I think the document you are describing would
be-routinely turned over to the defendant without this.provision. Part
of the reason that we feel reciprocity isn't really fair here is that the
Riles of Federal Criminal Procedure require us to turn over a, very
siibstantiitl quantity of, material.
Mn Mui;rziY. But'are you not arguing, this hypothetical memo that
you don't want to turn over
Mr. HEYMANN. Let me give my examples for the next point becausee
they are good examples for this point, Mr. Chairman, and I -am not
being very clear:'
. In 'the I(aimpiles case, it came out that there were'a number of copies
of some of the documents that were missing -a number of copies-not
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just the one that we alleged was turned over to the Soviets. Let's say
that, that fact, which is relevant, is in a. classified document some-
where. Let's say the defendant asks in discovery for any documents
indicating additional copies of the material that were missing. We
would turn that over, and we, would have to turn that over prior to
trial, and the defendant would have that.
There would then be a proceeding in which we would argue, perhaps,
that that document should not be used at'trial. Let's say that at inci-
dentally reveals a number of people who are CIA, agents that arren't
known to be CIA agents or something else; the mere fact that they
were lost, of course, is not a legitimate national secret. But let's say it
has other secrets in it. We would-have this pretrial proceeding and we
would say, what do you propose to introduce at trial, and the defendant
would say, I want to introduce that document that talks about other
copies that were missing, and we have this proceeding that your bill
and our bill contemplates. The judge would look at it, and let's say
the judge ruled that the defendant can introduce it.
Under your bill, at that point, we are required to produce all evidence
that we have to rebut, to let the defendant know how we plan to rebut
his claim that maybe the document the Soviets got was a spare copy
that had been left on a street corner by mistake or something like that.
We are required under your bill to reveal whatever evidence we are
going to bring forward at trial to show that that claim of the defense
is false-all our rebuttal evidence and our witnesses.
What is our rebuttal evidence? The defendant here wants to use
the document which lists other copies that have disappeared to show
that it wasn't he who delivered a classified description of a weapons
system or an intelligence system to the Soviets, but that somebody
else probably did it or that the Soviets may have found it on the street
corner. Our whole case is the rebuttal to that. Every bit of our evidence
that the particular defendant was seen taking the document, was seen
meeting the Soviet agents, was seen walking down the street, at the
point of the transfer, may be treated as the rebuttal to the defendant's
proposed use of that single piece of paper listing copies that had been
lost.
What we are worried about .is that under your bill and under Sen-
ator Biden's bill, for .a, small, part of the defense case,- perhaps, we
may have to reveal 'our whole case ,pretrial. We are even worried that
it' may become a 's6bstaiitial' p'a'rt _of a pretrial, game that defendants
may, in order to get earlier, full revelation of the Government's case,
do a little bit more graymailing.
'I regret the fact that this is a very complicated area. I guess I would
just say in summary that it is very complicated. I know that as I say
it that it may be too complicated orally without papers in front of us.
What I am saying is that what looks like sensible rules of reciprocity-
the bill of particulars provision and the provision that requires us to
produce our witnesses and our evidence that we will use as rebuttal-
may create substantial disadvantage and unfairness to the Govern-
ment, and we don't think that there is any substantial disadvantage and
unfairness to the defendant if they ; aren't; there: The defendant, with-
out these provisions, is no worseoff than in the rape case. The defend-
ant, in most cases, will have gotten the information from us in the first
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place. Our case is largely exposed by discovery, by the indictment, and
by normal bills of particulars. We don't think there is any unfairness
if there is not an additional disclosure requirement. We think that
there may be confusion in the courts of appeals, uncertainty, and re-
versals of convictions as a result of the reciprocity provisions. If it
were felt that there ought to be some reciprocity provision, I would
leave it to the judge to decide in his or her wisdom. The judge can see,
for example, that a document does not have much to do with the de-
fendant's case, and could determine that fairness does.not require the
Government to reveal its whole case as "rebuttal" evidence. I would
leave it to the discretion of the judge.
Finally, there is obviously an issue between us on the question of
detailed reporting by the Federal Government. The chairman's bill re-
quires a detailed report by the Government on all aspects of why we
have failed to proceed in a case. There are two sets of problems that
come with that detailed reporting requirement. One set of problems is
easy to address. There are good reasons in some cases for protecting the
privacy of why you don't proceed with a case. There may be grand
jury secrecy aspects. We may not be proceeding because of something
that came out in the grand jury that we should not reveal and cannot
reveal without a court order. There may be rights of persons involved
who have not been formally accused. We may not be proceeding be-
cause we have concluded that somebody else was heavily involved who
was charged. To reveal that is not proper.
There may be, and there frequently will be, a number of reasons that
caused us not to bring a case. I can think of cases where there was a
graymail issue that would have been a major issue but I didn't want
to bring the case anyway. I simply didn't want to bring the case, and
so I said no indictment, although there would have been a graymail
issue.
In short, I think the committee has to take some care in what is an
unprecedented request in reporting on our discretion. I know of no
precedent that would ask us to say precisely why we didn't prosecute.
Now, let me say that there are healthy informal procedures that are
already at work here. This committee has felt free, and I think cor-
rectly and wisely so, to call upon us to explain why we didn't prosecute
in :the ITT. cases, and. witnesses-have come up, either. in executive ses-
sign, as was thought appropri:ate,;and% have at.least explained what
the national security considerations were.
It is the additional formality of requiring a detailed written state-
ment that may require us to compromise privacy of individuals and
grand jury considerations and that will be the first detailed review of
our discretion that we question.
I wouldn't in concluding, be honest with you if I didn't say that I
think there will on occasion be a substantial concern about putting a
national secret in writing in a formal document that is to be circulated.
And let me give the category clearly because it is very easy. There
would, be . no concern,. I. think, about. keeping the committee fully in~-,,M
forxzied We;do have r.aSes.wher pec~ple;will die where people will ?be
promptly executed. 'if tlieiir ide~ntrties= ai revealed ??I ht ye had, eases
that I believe fall in that category during the year and a month or
two that I have been in my job, and they keep me up at night as I am
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sure they keep you people up at night. In that category of cases, I am
sure that we will want,. the intelligence community will want, and
the defense community will want a very special form of reporting
because simple release of the name might. result in the death of the
individual identified.
That is all I have to say, and I appreciate the long time allowed me,
Mr. Chairman.
Mr. MURrrir. Thank you, and you have been most informative as
usual.
Our next witness is Ms. Deanne Siemer, General Counsel of the
Department of Defense. The Department has taken a great interest
in graymail legislation and is responsible for many of the provisions
which we will discuss today. Ms. Siemer is no stranger to this sub-
committee. She has testified several times before the subcommittee,
and we continue to have the highest opinion of her legal ability and
judgment.
Ms. Siemer, welcome and please proceed with your statement. I
know you were engaged in a numbber of activities other than this,
in helping putting some departments together, and we understand
your time constraints and we appreciate you appearing here today.
STATEMENT OF DEANNE SIEMER, GENERAL COUNSEL,
DEPARTMENT OF DEFENSE
DIs. SIEMER. Thank you very much, Mr. Chairman, Mr. Mazzoli,
Mr. McClory. I do appreciate this opportunity to appear `before you
and talk about.H.R. 4736 and H.R. 4745. I have not submitted a pre-
pared statement because I am appearing this morning primarily in
support of the Department of Justice. We worked closely with Mr.
Heymann and his staff on the bill. We support the bill and we support
his explanation of the bill.
We also second his view that H.R. 4736, the chairman's bill, pro-
vides important improvements in this area, and we believe the differ-
ences in the two bills can be bridged readily.
As you indicated, Mr. Chairman, we have terribly important inter-
ests at stake here. The Department of Defense produces more classi-
fied information than all the other Government agencies combined.
Our focus here is largely on defense weapons information although
we obviously have important intelligence interests at stake. In either
case, defense or weapons kinds of information or intelligence informa-
tion, the Defense Department's interests are protected by these bills,
regardless of the reason for classification.
In our view both these bills provide an important protection for our
defense interests because they sharpen and narrow the balance to be
made in what Mr. Heymann has referred to as the disclose-or-dismiss
dilemma, We believe that even with these bills the problem still exists.
In some cases we will still try to persuade Mr. Heymann to dismiss A.
prosecution rather than suffer the disclosures that would be required
in a fair trial.
But these bills provide procedures for us to narrow the issues so that
we will know precisely what is at risk. We will know precisely what
classified information will-have to be revealed, and we will have legally
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?enforcible assurances that no other information will. have to. be
revealed.
At present, as you know, we have to speculate about what might be
revealed and what might have to be disclosed under certain circum-
:stances, and, as responsible lawyers, Defense Department counsel, to
take into account every possible circumstance that could affect us.' This
broad view obviously tilts our recommendation toward dismiss rather
than toward disclose. If we know precisely what has to be disclosed,
and we have those legally enforcible assurances that nothing else will
have. to be. disclosed, I think the balance goes the other way. That will
'niore often result in a decision to go forward with prosecution.
i . We also agree with Mr. Heymann's assessment because H.R. 4745
.has been built on existing procedures, it provides a balanced system of
protections for the defendant as well as the Government. For us it r6-
:moves the element of surprise, which is our most sib ificant problem in
the' current system of ad hoc handling of classified materials in crimi-
nal trials. The administration's bill includes virtually everything that
we outlined when we testified before your committee last February.
We support H.R. 4745, and .we urge that the committee report, it out
favorably....
Mr. MURPHY.' Thank you, Ms. Siemer.
Let me ask just one question as long as I have both of youbefore me.
Have there in :the past been differences between the Justice Depart-
':ment and other departments dealing with security matters as to mov-
in
ahead with
ti
?
g
prosecu
ons
Mr. HEYMANN. Yes, there certainly has; and there will continue to
'be, Mr. Chairman. The most important thing I think for me to. say
right at the beginning is that, in the 14.months that I have been there,
I have. never seen a case where I did not think that the intelligence
community or the Defense Department was proceeding in complete
good faith trying to-protect legitimate and continuing national secrets.
I have not seen any cases in which?I thought there was an attempt to
cover up scandal, impropriety, or embarrassment.
Still, there, are differences. Our disposition is heavily to prosecute.
That has been Judge Bell's disposition; it will be Attorney General
Civiletti's disposition.' As Deanne said as she was going'through, when
there is a question of real doubt; the disposition of the intelligence
community and of'the Defense Department will be not to risk disclos-
ure by, prosecuting. However, the system is, working, administratively.
It works by Deanne and me and the General Counsel of CIA Dan Sil-
ver, sitting down and discussing the issue, trying to resolve 'it, and,,if
-we can't resolve it, taking it to the Cabinet level.-There the Attorney
General has the power to decide, subject to an appeal to the President,
and in most cases it works out fine. It is, a friendly but heated
.discussion.,
Ms. SIEMEn.rARd in that context, Mr. Chairman, what we are talk-
ing about here is narrowing the' discussion. When Phil and I discuss
what might happen, for example, in a IKampiles-like situation, Phil
will say,, "Well, 1think the risk is not great that this information
'will. come :out." I'll say,, "Phil,.I think the information is terribly
important and the' risk is, terribly great." We are talking about rela-
tiverisks.'if we eliminate that discussion and Phil says tome, "Deanne,
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this is all that is going to come out, this sentence, that's it, and you
have legally enforcible assurances that nothing else will come out"
we can discuss what to do with that information quite readily. And
as Phil says, when we know what it is, we can almost always reach
agreement. Our differences are primarily in our assessments of the
risks. My client is different from his client, and my client doesn't want
to take those risks. His client, the people of the United States, do want
to prosecute the case.
So, by narrowing those discussions and permitting us to get to the
heart of the case much more easily, this bill does a very important
thing.
Mr. MURPHY. The question is, though, there is another party to all
of this, and that is the defendant, and while you are having your dis-
cussions and you may be all satisfied that you have narrowed the
issues to your satisfaction, Justice, CIA, Defense, and so forth, the
defendant's rights may. be abridged in some way.
Ms. SIEMER. I am talking about only the disclose-or-dismiss decision,
primarily the dismiss decision. Our discussion at the outset of whether
we should dismiss or not will be narrowed.
Mr. HEYMANN. Nothing that we do, Mr. Chairman, will in any way
affect the defendant's rights. The bill that you have introduced and
the bill that we have introduced are designed to and should protect
the defendant's rights to use whatever is important to a fair trial. All
of that has to Abe protected.
What we are talking about and what Ms. Siemer and I are saying
is that having protected that, we will be able to then make our decisions,
as the chairman himself said at the announcement of these bills, we
will be able to make our decisions much more easily. We will know
what the court has done. The court will say this will come into evi-
dence. I'm going to admit this, but I'm not going to admit that. And
we will know that we have to argue about just one of the two items.
And we will resolve it. Should it be introduced, should we allow its
disclosure for purposes of trial or not?
Mr. MuRpiiy. There is some concern that it is more likely that the
legislation we are discussing here today would be used against one
particular class of defendants than another.
Is this true, and if It is not, in what kinds of cases is it most likely
to-be used? w
Mr. HEYMANN. I myself see two classes of defendants affected-
everybody has a concern that it is only aimed at one of them-and
I can never guess which one they think' it is aimed at, Mr. Chairman.
The statute will plainly be useful. in espionage cases. For example,
it would have been useful in the Kampiles case or in the Enger and
Chernyayev case in New Jersey. It will plainly be useful in cases
involving high Government officials. If I were today charged with
perjury before this committee or any of a number of crimes, I believe
it could be quite difficult to try me because of the marginal relevance
of national security information, for the names of informants that
I would insist as a matter of fair trial I would have to be able to
reveal. It would probably be considerably harder to try Ms. Siemer.
I mean, that would turn out to be impossible. Her testimony is quite
contrary to her interests.
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The two categories of cases are classic espionage cases, of which we
have perhaps three, four, five a year in an average' year, plus cases
that involve high Government officials, the pending FBI case is obvi-
ously the most immediate example, or people who are closely asso-
ciated with the intelligence agencies. The ITT cases involving private
individuals were of that sort.
There is one other category that concerns me the most, and I haven't
mentioned that, and that is overseas corporations' operations, bribery
matters, this could become a substantial issue in that type of case if
it were not dealt with by legislation.
Mr. MURPHY. Thank you.
Mr. McClory.
Mr. MCCLORY. I am concerned about the reciprocity provisions. it
seems to me that when we have classified information which a defend-
ant may or may not want to utilize in the course of his trial, that there
should be some sort of obligation on the part of the Government to
produce it, at least in response to a bill of particulars. Otherwise, the
defendant may be deprived of an opportunity to defend himself fully.
Don't you think that an exception in the bill which would provide
some kind of a reciprocity requirement would be important?
Mr. HEYMANN. Let me try and state our
Mr. MCCLORY. You made the rape case analogy, but I am wondering
whether there isa valid analogy.
Mr. HEYMANN. You know, it depends a lot on the circumstances,
Mr. McClory. What we are talking about is what do we as a country,
what do you, that is the 'best way to put it, as legislators, owe the
defendant if the defendant is required prior to trial to reveal to the
Government and the judge what classified information he plans to use?
That revelation is necessary if we are going to have pretrial rulings
on admissibility, but the question is, does that disadvantage the defend-
ant in such a way, having tipped his hand, that the Government ought
to ]lave to tip its hand some, too ?
My rape analogy simply pointed out that we don't always-it isn't
precisely analogous to the rape case, ,I don't think-but we don't al-
ways when some policy leads to one party having to tip its hand a little,
we don't always require the other party to tip its hand. I think the is-
sue: in the prior discussions at the staff level has been somewhat over-
blown in its importance one way or the other.
In some cases I can. imagine it would be fairer to require the Gov-
ernment;to. tip its hand some if whatever the defendant had to reveal
in the way of classified information he planned to introduce really did
reveal his case, Mr. McClory, really told us where he is going, what he
is going to do, how he is going .to try to prove it. If he told us all of
that, it would certainly seem fair to me that the Government provide
some responsive discovery of what its case will be.
Mr. MCCLORY. Then you do need some section in the bill to
Mr. HEYMANN. The trouble is trying to get a balance. The trouble
is that it may be that in trying to deal with that situation, which I
think may be the unusual one, where there is real unfairness in requir-
ing+the defendant to tip his hand, we may create greater unfairness as
well. as unduly complicating cases. If it is a document that we have
given on discovery that the defendant now says he intends to use, I'm
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not sure that I feel there-is any.unfairness in our not having to provide
further disclosures.
But the main problem is that frequently the defendant will ask to
introduce what may be only a minor part of his case. He may say, look,
I would like to introduce the following classified secret, and it may be
a very small part of his case. We are worried that the language in the
chairman's bill may require us to reveal all of our case in response to'a
very minor tipping of the defendant's hand. Reciprocity is, after all,
some notion of equity and fairness and equality. It may be simplest not
to require reciprocity here at all, but if it is going to be required, we
don't want it to tilt to the point where there is even .an encouragement
to ask for documents that have a minor part in your case in order to it
see the whole Government case in advance.
I guess my, answer, Mr. McClory, is that if there should be reciproc-
,ity, keep it general. Leave it to the judge. There is no reason to think
.judges. are going to tilt in our favor on an issue like reciprocity and be
unfair to defendants. But let them tailor something that is balanced
and sensible., Otherwise, if it looks like it is a plain rule written by Con-
gress as to what has to be.done, we are afraid there are-going to be many
cases where there are going to'be, arguments, appeals, disputes, and un-
fairness in the form of requiring us to do ridiculous things. for a minor
.disclosure.
Mr. McCLORY: Do you concur in that, Ms. Siemer?
Ms. SrEMER. I.do, Congressman. I think the reciprocity problem
'that you are looking at occurs primarily in the Government official
kind of a case. As Mr. Heymann says, in the traditional espionage case,
that is rarely a problem because it will be triggered by an attempt to
use something that the Government has given up
The only category of cases where reciprocity might be important is
the high Government official case. The knowledge is in his head and he
might produce a statement with respect.to.his defense-how I intend
to testify and what I intend to lay out in my defense. That very
narrow category of cases is well, recognized. and is .protected under
current rules.
Mr: MCCLORY. Well, . I am. thinking ; more of. the . case where you
prosecute the person .for. breaking. and entering, or allege, that he
stole something or he attempted an, assassination of somebody, and
this was a criminal conduct, and he says, well, my God, they, told me
to do this. This is national security,' and he needs an awful. lot of
information that it seems to me may be denied him.
Mr. HEYMANN. Well, he would get. that information, you are right,
Mr. McClory, that he would, need a lot of information, but he will get
that on discovery. He will, get that not, because of Mr. Murphy's, pro-
vision which says .that once ,he tells .us the-secrets that he is going to
try and reveal at trial,-we have to give him a lot of information as to
how we are going to meet those secrets. He. will get it because prior to
the trial he will come up before the jiidge.and.he'll,say, I can't prepare
.my defense without knowing all the. following information from,the
Government. And we will. be required .under rule 16,, and not changed
.
.by this statute, to give him that information.,:
Mr. MCCLOr.Y. There is nothing in either one of the bills that indi-
cates the effective date of this proposed legislation.
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What is your perception as far as.the, effective date? And that would'
be the , effect ' with regard to offenses that have already been com-
mitted, even pending. prosecutions?
Mr. HEYMANN: We frankly haven't' thought about it, and we'cer-
tainly. haven't discussed it. I would think that it would rather nat-
urally apply to any trial that had not yet taken place, and probably
the appeal provision should not apply to trials that have already
taken place, or pretrials that have taken place.
We ought to write a provision like that, and I would also suggest,
Congressman McClory, that we submit to you a proposed 'reciprocity...
provision that doesn't have the terrors for us in it.
Mr. MCCLORY. That would be very helpful.
Mr. HEYMANN. OK.
Mr. MCCLORY. Thank you.
Thank you, Mr. Chairman.
Mr. MURPHY. Mr. Mazzoli.
Mr. MAZZOLI. Thank you, Mr. Chairman.
Mr. Heymann and Ms. Siemer, maybe you can address yourselves
to the problem that you brought up at the end of your statement on
the written reports that you would feel could be compromising and
difficult.
I wonder, first of all, if that is a joint position in which the Defense
Department agrees, and second, would you have, and have you thought
or are you in a position to recommend to this committee any alternative
to it at this point?
Ms. SIEMER. Let me just address whether it is a joint position.. It is
very. much a joint position, but we join-it for a different reason. The
reporting requirement might be so difficult for us that we would sup-
port prosecution rather than dismissal plus reporting. Our view was
that that was an interesting way to force us into a compromise with
the Justice Department. We thought they had been very clever about
that., But it-is very much a joint position.
M. HEYMANN. I think there are. alternatives that would work very
well, and I think the crucial characteristic of the alternative is infor-
mality, Mr. Mazzoli. In other words, I think that the right people to
review these decisions are the. intelligence committees, perhaps not to
the exclusion of others, but primarily. I think there is real advantage
to your reviewing the decisions, among other reasons because I think
that we are all up against the claim that what is really involved-you
are~going to hear'it as you have testimony-what is really involved in
graymail is the Department of Justice covering up for the sins of the
CIA or the. Department of Defense or the Department of State.
That is not what is involved and we won't let it be involved. I like
the idea that there would be a legislative committee of substantial
respect concerned about legitimate secrets but not about covering up
dirty laundry of the executive that would be in a position to ask the
question : Was there a secret here that was important?
But it ought to be done informally-and it ought to be done carefully.
Mr. MAZZOLI. In other words, you would think-do I take it from
this statement of yours that you would not be adverse to responding to.
a request from this committee or this full committee to come up and
discuss the last 6 months' worth of cases that have for one reason or
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another.not been prosecuted, that you would bring with you docu-
nientation, information that would let this committee make an intelli-
gent decision on whether or not the guidelines .are being followed,
whether or not there was, as you use the word, coverup.
It that your feeling, Mr. Heymann?
Mr. HEYMANN. That is very much my feeling. I should say, Mr.
Mazzoli, that on this one I would have to talk to Ms. Siemer, and she
probably won't want to tell us right now.
Mr. MAZZOLI. I understand.
'Mr. HEYMANN. And I would have to talk to the Attorney General.
But that is very much my feeling. I think that is the way it ought to
be done. I think it ought to be done, and I would see no great problem
in that. If it were the name of someone who I thought would be killed
on that occasion, I would say let's try to avoid using and given names,
as I would with Defense or CIA. I would just as soon not have the
name myself.
Mr. MAZZOLL Let me ask you this question on the Jencks Act. You
suggested there ought to be some changes. If I understand correctly
from testimony we have had.earlier this year and last year, the gov-
ernment has been very successful in most of its espionage cases in which
I' presume somehow you have managed to live with the current inter-
pretations of the Jencks Act, and I wonder if you could briefly ad-
dress yourself to whether or not you find the current Jencks Act
totally impossible to deal with, whether you have been lucky in the
past, whether it takes additional effort but can be lived with, and where
you feel within the order of priorities that Jencks Act amendment
would rate.
Mr. HEYMANN. The Jencks Act has not been a major problem for us,
Mr. Mazzoli. It is a relatively small part of the bills that we are talk-
ing about, your bill, the chairman's bill, our bill. Among the range of
problems it is relatively small.
We happen to believe that what we are'proposing is right in that
handful of cases where it will turn out to be a problem. We believe
that what we are proposing is fair, just and .reasonable, and we believe
that the attacks on it are bigoted, biased, irrational and generally
poorly motivated. [General laughter.]
Mr MAZZOLT. But other than that, they are pretty decent.
Mr. HEYMANN. That's right. [General laug
11 hte r.]
But it is not a major problem area, and that is the question you asked.
Ms. STEMER. Could I add one thing, Congressman?
Mr. HEYMANN. It may turn out to be a serious problem in particular
cases. It just will not arise in a very high percentage of cases.
Ms. STEMER. That was the .point I was going to make. It is a signifi-
cant problem for us because before we can make anybody available
to the Justice Department, even a prospective witness, we have to go
back and see what might come out simply of making him available.
We have to go through another series of discussions and negotiations
about who can be available for the prosecution.
Under this proposal, the best witness can be available for the prose-
cution, the prosecution can go forward as efficiently as possible, and
you have no adverse effect on the defendant. It will have a significant.
effect in specific cases.
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. Mr. HEYMANN. And what Deanne is saying ties in very closely with
what I was saying. The reason that we can live with what we regard
as a not sensible disposition here is because we can avoid calling the
best witness. We can call another witness. We can keep the witness, in
many cases, from talking in the area at all so that the judge would
naturally strike that part of his prior statement. But these are all
distortions of the process for no good reason. We ought to, if we are
trying to establish that the K II-11 manual is crucial to the national de-
fense, we ought to call the strongest witness, not the witness who has
given no prior Jencks Act statement. We ought to call the witness and
ask the witness all the questions that would be helpful to the jury,
not avoiding an area where something might come out wholly con-
sistent with his statement, but that was a national secret.
Ms. SIEMER. And turn it on the other side. If we decide that a par-
ticular witness has to be made available for a prosecution, we shouldn't
be prevented from using that important manpower for other purposes.
For example, suppose the secret is disclosed. We may have one.fellow
who is very expert in that. If we decide to make him available as a
witness, we may not be able to use him to do the damage assessment-
to figure out what went wrong, how much damage we have sustained
and what we should do to protect against it. It may be a tradeoff
:against meeting the Justice Department's requirements and meeting
our own internal requirements, and those damage assessments have to
be done very quickly. They are terribly important to us. But we may
have a tradeoff right there at the outset, we have to think about pros-
ecution before the case is even beginning to be brought.
Mr. MAZZOLT. I thank you, and thank you, Mr. Chairman.
Mr. MURPHY. Chief Counsel has a couple of questions.
Mr. O'NEIL. Mr. Heymann, you suggested that a standard similar
t6 that applied for Government informants be used in determining
whether classified material may be used at trial. You suggested the
Roviaro standard. Do you believe that the Government would be un-
able to argue that Roviaro applied'in these kinds of situations absent
the standard you would like to see, the standard that is in 4745?
'In other words, if 4736 was enacted as it is written in this area
Mr. HEYMANN. No; I think we would be in a position-it depends
:an .awful lot on the legislative history and it depends on the type of
discussions we are having right now. I think we would be in a position
? where we could argue it. I would hope we would be in a position under
Chairman Murphy's bill where we could argue that the Roviaro
standard applies. We urge it in our statute because we 'want the rule
to be clear, we don't want to have to argue it in every district court,
and we would like it to be settled once and for all.
Mr. O'NEIL. Section 8 (b) of 4745 would provide the authority for the
`Government to introduce only part of a document at trial. There you
appear to have left the determination under the provisions of the sec-
tion to the court, based on the current concepts of admissibility and
use.
Why didn't you suggest the Roviaro standard there since you are
providing an exception to the current Federal rules?
Mr. HEYMANN. In that particular provision, what, we are doing is
authorizing the Government to delete sections-tell me if I have the
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wrong section, but I think I have the right section-we are authorizing:
the Government, with the approval of the court, to delete sections of
let's say a classified document. That is a step that seems to me 'to'be"
entirely justified and 'fair. These are documents that are going to be-
introduced by the Government'as part of the Government's case. This'
is not a provision for deleting something that the defendants wants
to go into at trial. The materiality standard is a standard that would.'
limit what the defendant can put in at trial.' This is a provision that
allows us to delete and restrict what we ourselves put in at trial: Now,.
that makes a lot of sense in the following circumstance. If someone-,
steals a document and gives it to the Soviets and it involves 150 secrets,.
if we want to prosecute them for espionage, we ought to be able to pick
any five secrets; say pages 1 through 5 of the document, and prosecute'
them on that basis. That means that the price of prosecution is only
revealing 5 secrets publicly, not 150, and that is what the provision is.
intended to do, allow us to limit the secrets that are part of our case,.
not part of the defense case:
Mr. STERN. This is just to authorize the court 'in dealing with the
document to delete certain items. If the defendant 'wanted to go into-
those items, the defendant would have a copy, in an espionage case fo,r.
example, of the entire document and the propriety of the deletions.
would presumably be discussed and argued about before the judger If.
the defendant wanted to go into any of the,items that'were deleted,.
then the other provisions of the bill would be triggered and the Roviaro?
standard would be picked up and used to determine' whether the de-
fendant could reveal certain of the items that had been 'deleted from
the document.
Mr. O'NEIL. So you feel that it fits.
Mr. STERN. I don't'think that there is any inconsistency between
the 8'(b) provision -and the Roviaro standard that is incorporated in
the bill generally.
Mr. O.'NEri. And lastely,,section,8(b) provides authority for the-
government. not- to declassify a document by introducing it "into evi-
dence in a' criminal trial to be covered by these procedures., Classifica-
tion . is an entirely executive branch kind of - process. hy is this
necessary, this section ? `I'm? referring to H.R. 4745.
Ms: SIasER. It is necessary because of the- problem about public dis
closure that arises :under the Executive order' and the Freedom of '
Information Act. You don''t have security clearances for the jury. You
don't have security. clearance?' for the judge. There is 'an argument
that if you disclose classified information to someone who does not
have ' a clearance; it has been, made public and therefore, is available' .
under the Freedom of Information Act or has to be' declassified under'
the Executive order. Our problem here is meeting that. This section-,
meets it head on 'and says plainly that the statute permits classifica-
tion to continue even though classified material is used in any way in
a trial setting. That is all that provision does.
Mr. HEYMANN. It is an entirely technical point. We have taken the.
position in some cases that we could not reveal classified material to.
the jury without first declassifying it. This statute will allow 'us ta'
reveal it to the jury and to the judge without first declassifying it.
The trouble with having to declassify it was that once it was de-
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.classified, we . couldn't then keep it secret from the, world at large
2 months.later. If we wanted it to be a secret two months later, having
declassified it for purposes of trial, it was difficult to avoid Freedom of
Information Act and other demands for it.
Mr. Munarly. Ira, do you have a question?
Mr. GOLDMAN. Rule 403 of the Federal Rules of Evidence. states that
.evidence is generally admissible if its probative value outweighs the
prejudicial effect.
What prejudice is being referred to? Is it prejudice to the truth
determining process of the court, is it prejudice. to any of the parties?
The rape evidence rule speaks in terms of prejudice, but again it
doesn't specify. whether you are talking about the victim's. rights or
'the truth determining process.
Can the Government's interests, the national. security; be, considered
a factor in determining prejudice?
Mr. HEYMANN. I would think that we plainly could not claim that
it was under those rules of evidence. I would like to know what Ron
and Deanne have to say about that, but the question really is could
we have used or could we use that rule of evidence to accomplish many
of our .purposes by saying that the prejudice .to the. Government from
.having to reveal 'a national secret is adequate for the judge to deny
admissibility of particular evidence? I think that is not the type of
prejudice they had in mind, and I do not think we could use that.
Deanne, do you?
Ms. SIEMWR. It would not 'do what I am arguing is the primary
benefit of this bill, which is to narrow the discussion. If I had, to rely
on that rule, I would go right back to my position that there is a risk
that everything be revealed, and the risk with respect to the broadest
possible. perspective has to be weighed against the Justice Depart-
ment's,interest in.prosecuting. That puts back into the system all the
.,uncertainty that currently.exists.
If-I could use that rule now, I would. I can't.
Mr. HEYMANN. And the prejudice that they are presumably refer-
ring` to there is the prejudice that comes when you' show particularly
gory pictures of the murder victim. It is the prejudice to the'very truth-
finding process, the bias it builds into the jury,.
Mr. GOLDMAN. Section 6(c) (2) of the Justice'Department proposal
:States. that, classified.information.gan only be, disclosed at trial if the
court makes ,a written determination that the information is relevant
to defendant's case. .
.Do you anticipate then that-or do.vou desire that classified infor-
mation would not be used for purposes of impeachment, and would that
provision preclude such use of the information ?
Mr. HEYMANN. We certainly intend the same rule to apply to im-
peachment, you know, to let's say cross-examination of a witness,.that
classified information can only be used if the other standards of the
'bill are applied and satisfied.
I take it your question is: Haven't we in this provision absolutely
ruled out any use of classified information for impeachment purposes,
and had we not better together look at it carefully ? We certainly didn't
intend to and it should not. You know, in an appropriate case-the
Jencks Act issue is that very issue. Classified information may be cru-
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dial for impeachment, and if it' is essential and it can't' be summarized,
and you can't do something else with it, then it may just have to come
in.
Mr. GOLDMAN. Section 111 of the chairman's bill provides that the
Government shall make known to the defendant what portion of the
classified'information, let's say in a document that has been given to a
foreign power, what portion is going to be used by the Government iii
proving its case. `
Do you have any comments on that provision?
Mr. IIEYMANN. I wish we had thought of it.
Deanne, do you have any problem with that?
I think it is-we have discussed it within the Justice' Department.
I have not run it through-the entire system. I think it is probably it
highly desirable addition.
Ms. SIEMER. In practical effect, that is what has to happen anyway..
That is not a practical problem. On whether it should be a statutory
requirement or not, I would defer to the Justice Department. This is a
prosecution problem. ; it is not a Defense problem. Once you get this far,.
how they deal with the case is their problem.
Mr. GOLDMAN. Well, it could be a Defense Department problem in
the sense that in the III-1.1 case, would it have been helpful or would
it hurt if you said, we are only going to use pages 10 through 23 to
prove that the document relates to the national defense?
Ms. SIEMER. But notifying the defendant that that decision has been
made is not my problem. Once that decision has been made, I am happy.
It is his problem to get the person convicted. I would defer to them as:
to whether this is necessary or not.
Mr. HEYMANN. This seems to me to be a perfectly appropriate rec-
iprocity-type provision. If we are going to use only part of a document,
the defendant ought to know in advance that that is the part that the-
defendant had better be concentrating on showing is not related to the,
national defense.
Mr. GoLDMAN. One final thing as to the application of this law to-
.currently pending cases. Would you have any problem with it only
applying to cases that had not reached the indictment stage on the day
of enactment, so it would only apply to cases indicted after the law
came into effect?
Mr. HEYMANN. I think we would have no problem with that. I mean,.
I think it is something we ought to discuss. We certainly have no in-
tention of trying to get the statute through in time to deal with any
pending case that we are having trouble with or anything else. We
don't mean that, and any sensible rule as to when the statute starts up,
would be fine with us.
Mr. GOLDMAN. Thank you.
Mr. MURPHY. Mr. Raimo?
Mr. RAIMO. Mr. Heymann, you are proposing a standard of more
than just mere relevance for classified information, and you offer the
new rape evidence rule as precedent. As Air. Goldman pointed out, the
new rule is still in the same words as rule 403. It says such evidence-
may be introduced if it is relevant unless its prejudicial effect out
weighs its probative value.
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How is the new rule, as you say in your statement, an example of
Congress going further than the Roviaro case?
Mr. HEYMANN. Why did I say that it went much further in the
rape area?
Mr. RAIMO. Yes. It seems to me to just restate rule 403 in a specific
case.
Mr. HEYMANN. I think the balance that the new rule for rape cases
requires isn't one between prejudicing the jury at trial and relevance
of evidence but the harm to the woman versus the usefulness at trial,
the harm to the woman from having here reputation damaged as a
result of a public trial. In that way it is very similar to the type of issue
we are talking about where the harm is from revelation of information
at a public trial.
What. I was suggesting was that the standard used in the rules of
evidence really did suggest something more of a real balancing effort.
You may disagree with it, maybe, but that is a disagreement about a
rule of evidence in rape cases. I was suggesting it required a little bit
more of a balance than we are suggesting would be appropriate here,
really deciding how much would the woman be hurt, how important
is it at trial.
If I am wrong about that, I am wrong about that. That is what I
I was suggesting, and I was certainly saying that we are not asking
for a balance between the national security concerns, the importance of
keeping secrets, and the importance of a fair trial. All we are asking
for is that there be a touch more than the most marginal relevance,
that it be something more than an argument that, if you will excuse
the term, a law school professor could make that perhaps it was rele-
vant. We want it to be something that a judge would look at and say,
yes, that could be helpful at trial. And that is the Roviaro standard.
The Roviaro standard is relevant and helpful. That is the language.
11're used material because we thought it was a little bit offensive for
the judge to be deciding what was or was not helpful for defense
counsel. We don't like that language. .
Ms. SIEMEiz. What they did in the rape rule was an attempt to go
beyond the general evidence rule. The rape rule says that the probative
value of such evidence must outweigh the danger of unfair prejudice.
It was an attempt to go beyond a finding of prejudice and to go to
the danger to a woman in having this kind of testimony come for-
ward. The legislative history makes clear that they want to go beyond
that, . and, that it is a tougher test for the person who is pushing to
get the evidence in. What we are saying 'here is that you don't need
to go into that balancing here if you adopt the flat standard that the
Justice Department is proposing.
Mr. STERN. I think the fact that the rape evidence rule was put
in the Federal Rules of Evidence-it is rule 412, and it is only a
couple of rules after the general rule you cited-is an indication that
that general rule is meant to apply to the prejudice to the defendant's
rights to have the truth-determining process be untainted and is not
a balancing of some other interests, like the interests of the rape
victim, or the Government's interests in protecting national security
information. There is an important distinction between balancing
extraneous interests against the importance of the information to the
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defendant because in the context we are talking about,. the Govern-
ment has some very, very important interests.
The administration's bill would limit the standard by focusing
solely on the importance of the material to the defendant and would
not allow that to, be overborne -by-very, very important national secur-
ity information. So I think the focus in the administration bill is
properly where it should be, ,on the importance of the information to
the defendant.
Mr. MCCLORY. Well, actually, aren't there overriding social and
political reasons for both the legislation that modified the rape rule
and this -legislation? I mean, there is a public demand for, in the rape
rules, to not only protect the interest of the victim, but likewise to
see if we can't get more prosecutions, get more willingness on the
part of victims to assist in the prosecution, and in this case, we don't
want criminals, whether they are spies or whether they are robbers or
whatever they are, being let off scot free because they claim that classi-
fied information is involved, and you know, you can't prosecute me;
otherwise I am going to destroy the national security.
Mr. HEYMANN. There are a lot of parallels all the way, as you said-
I think it is quite striking what you said, Mr. McClory. There are
parallels all the way to the fact that the rape rule is intended to help
us bring rape cases. Otherwise the victim will not appear, and the rules
we are talking about here are intended to help us bring espionage or
abuse of office or perjury, cases.
Mr. MURPHY. Well, I want to thank all, three witnesses again. I ap-
preciate your time from what I know is a busy schedule.
And one point that I think we just touched on lightly, Mr.' McClory
touched on lightly that I think is very important is that if- we can
come to a- consensus on this legislation and we can get the'Senate and
the House to agree, it will have to address I think in a particular
fashion to pending cases and those cases that are contemplated, we are
kind of 'changing the rules maybe in the middle of the stream, and I
think it is very important,that we deal equitably with people's rights.
Mr. MCCLORY. Mr. Chairman?
Air.' MURPHY. Yes.
Mr. MCCLORY. Could I ask one. more question? I intended to raise
this before, but I won't now. You may have already examined the
other testimony that is going to be -presented here. At any rate, would
you mind, if you think there are any egregious claims or misstatements
made, to communicate some sort of a rebuttal to the committee so that
we can have the benefit of that. statement? .
Air. HEYrzANN. It would undoubtedly be a pleasure, Mr. McClory.
Air. MURPHY. Thank you, all three of you.
Our last witness this morning is Mr: Morton Halperin, Director of
the Center for National Security Studies and a member of the Ameri-
can Civil Liberties Union.
Mr. Halperin will represent the'A.CLU in his testimony today. Mr.
Halperin has also appeared frequently before this committee, and his
testimony is always. thoughtful and always calculated to provide an
alternative view.
Air. Halperin, welcome. and please proceed with your statement.
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STATEMENT OF . MORTON. H..HALPERIN, DIRECTOR, CENTER FOR
NATIONAL SECURITY STUDIES,, ON - BEHALF OF THE AMERICAN
CIVIL LIBERTIES UNION AND THE CENTER FOR NATIONAL SECU-
RITY STUDIES
Mr. HALPERIN. Thank you, Mr. Chairman. It is a pleasure to appear
once again before this committee.
I might say in view of the complimentary things that the distin-
guished Assistant Attorney General said about my remarks, I am
tempted to rest on the.record, but I think perhaps I should seek to deal
with, some of the points that he made.
I have a prepared statement and I would like to have that submitted
for the record.
Mr. MURPHY. Without objection, it is so ordered.
[The prepared statement of Mr. Morton H. Halperin followsJ
PREPARED STATEMENT BY 'MORTON H. HALPERIN
Mr. Chairman, I appreciate the opportunity to testify on -the Classified In-
formation Procedures Act bills now before this subcommittee.' I am testifying
today on behalf of the American Civil Liberties Union, a national membership
organization of some 200,000 members dedicated to the protection of the Bill
of Rights, .and on behalf of the Center for National Security Studies, a private
research organization jointly sponsored by the Fund for Peace and the ACLU
Foundation, and dedicated to preventing claims of national: security from
being used to interfere with constitutional rights.
From a civil liberties point of view .the legislation being discussed today
creates a possible conflict between the need to stimulate the government to
prosecute those who use their official positions to deprive others of their
rights, and the necessity to protect the rights of all criminal defendants. Be-
cause this bill would affect rights of defendants at trial it goes to the heart
of the system of criminal justice. We therefore urge this committee to conduct
careful hearings and in -particular to examine the views of experienced trial
counsel about the probable consequences of the procedures authorized by the
legislation. In our view these hearings are likely to indicate that the bill
needs amending to ensure that it does not deprive any defendant of his or her
constitutional rights.
We would have preferred to.see this bill as one section of a comprehensive
charter for the intelligence agencies. Under. the express assumption that re-
strictive charters are to follow, however, we do not object to the considera-
tion of H.R. 4736 as a separate piece of legislation if it fully protects the rights
of defendants.
It is more important to be clear at the outset. about what this bill does not
do. Although it is often described as "graymail legislation" the bill would not-
and- could not consistent with the First Amendment-prohibit a criminal de-
fendant from threatening, to make public, classified information in his or, her
possession. Furthermore, it would not substitute for a lack of will on the part
of the government to prosecute or to make public classified information which
is relevant to a prosecution. In our view the lack of such will has been the
primary impediment to. proceeding with prosecutions directed at such former
high officials as Richard Helms and L. Patrick Gray.
Although the legislation is no substitute for a willingness to prosecute of-
ficial wrongdoing, it could permit a more orderly process for deciding whether
to go forward with a prosecution. The procedures established by the legisla-
tion would permit the government, in many cases, to learn before trial what
classified information would have to be made public. To the extent that these
procedures could facilitate such prosecutions while protecting the existing
rights of criminal defendants, we welcome the introduction of H.R. 4736 and
the holding of these hearings.
Yr.. Chairman, it is important to emphasize that we would oppose this legisla.
tion if it were interpreted to authorize secret trials, or to permit judges to issue
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gag orders prohibiting the press from publishing what it learns about any pre-
trial proceedings* or the trial itself. I do not believe that' it can be interpreted
this way or that it was intended to be.
We would also oppose this legislation if its effect was to authorize trial judges
to inhibit defendants from releasing any information which was in their pos-
session prior to discovery in a criminal trial except in connection with the trial
or pre-trial proceedings. Thus, for example, if the bill authorized a judge to
prohibit a defendant from making a speech or publishing an article revealing
information in the defendant's possession we would be forced to oppose it on
First Amendment grounds. Any such provision would, enable the government to
circumvent the very strong presumption against prior restraint even as it relates
to national security information, New York Times v. U.S., 403 U.S. 713 (1971),
Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976), by indicting the person and
invoking' the procedures of this act. Because section 102(a) (1)1 lines 24-25 is
subject to the interpretation that it authorizes such orders it needs to be
redrafted.
I should also say, Mr. Chairman, that in practice I do not believe that these
procedures will have any real impact on prosecutions for unauthorized disclosure
of information. What the bill could do, without compromising the rights of
defendants, is to facilitate the prosecution of intelligence agency officials and
others who, under color of law, violate constitutional rights.
Any legislation which accomplishes these twin objectives must adhere closely
to certain constitutional principles enunciated by the Supreme Court. As I read
H.R. 4736 it intends to adhere to these principles, but I would hope that hearings
and possible amendments as well as the legislative history of the bill will 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 considerations of
fairness that underlie it have been stated by the Supreme Court as follows :
* * * in criminal causes "* * * 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 under-
take 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.
'Iii 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 government
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 documents
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 con-
fidential character the documents may possess ; it must be conducted 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 bears directly upon the criminal transactions,
and those which may be only indirectly relevant. Not only would such a dis-
tinction 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, 671 (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, conceded 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).
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Indeed, the Supreme Court in that case was unanimous in holding that a de-
fendant was entitled to "arguably relevant material whatever its impact on
'national security might be." Id. at 184n15.
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
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 cannot make the decision as to whether the injury to national
security is limited enough to justify release of the information. It is the judge's
information ; it is the government's duty to then decide whether to proceed. In
this context we .believe it would be a mistake to permit the government to ex-
plain to the court why the information is classified, or even the basis for the
classification, prior to a judicial determination of relevance. The danger is
claims of national security, exaggerated or real, made by the government.
,The third principle is that of reciprocity. The requirement in the bill that
defendants disclose prior to trial what classified information in their possession,
if any, they intend to introduce at the trial, is constitutional only if it is ac-
companied by a requirement for reciprocal disclosure by the government. See
'Williams v. Florida, 399 U.S. 78 (1970), Wardius v. Oregon, 412 U.S. 470'(1973).
The reciprocity provisions now in this legislation are, we believe, sufficient to
-meet the requirements of due process. However, any weakening of them would
raise serious questions about the constitutionality of the statute.
Mr. Chairman, my comments thus far have been addressed primarily to H.R.
11736. Since I understand that in most cases the Administration is prepared to
accept the provisions of H.R. 4736 I see no reason to discuss the many minor
differences between the two bills before this committee.
However, there are three substantial areas of disagreement between the
bills on which I would like to comment.
The most important issue is the Administration proposal to modify the Jencks
Act. We* would strongly oppose passage of this legislation if any provision
.amending the Jencks Act was included in this legislation. The provision in the
Administration bill violates the fundamental principle that no otherwise dis-
coverable information can be withheld.from a defendant. The provision would
permit District Court judges to do for classified material precisely what the
Supreme Court said they cannot do for any information, classified or not, in-
cluded in a prior statement of a government witness relates to his or her testi-
inony at trial.
,The practice of producing government documents to the trial judge for his
determination of relevancy and materiality, without hearing the accused, is
disapproved. Relevancy and materiality for the purpose of production and in-
spection .:. are established when the reports are shown to relate to the testi-
mony of the witness. Only after inspection of the reports by the accused, must
the- trial judge determine admissibility-e.g. evidentiary questions of incon-
sistency, materiality and relevancy-of the contents and the method to be em-
ployed 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. Dennis states that it is not "realistic
to, assume.that the trial court's judgment as to the utility of material for im-
peachment 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." 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 874, 875. The Court ruled that a task
analogous to the determination of relevancy-determining if illegally seized
~evidence'had tainted evidence introduced at trial-could not be performed by
the trial judge ek'parte. The Court explicitly rejected a proposal by the govern-
ment, supported by two members of the court, that national security information
be treated differently. The Court held that even when national security informa-
tion might be revealed the trial judge could not. be permitted to determine if
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evidence was tainted. In, reasoning directly analogous:to the task of determining
if a statement can be used to impeach a witness, the Cbi rt rioted that :
The task is too complex, and . the margin for erior' too great, to rely wholly
on the in camera judgment'of the trial court..
Alderman at 182.
The recent experience in U.S. v. Humphrey, Civ. No. 7S=5177 (4th dir., appealed
Aug. 16, 1978), illustrates the.danger of the proposal contained in the'govern-
nient.bill. In its brief to the Court of.Appeals in that case the government con-
ceded that under' current law the trial judge may .lint 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 witiiess
at trial. The defense argued, vigorously that the material was clearly within the
Jencks rule and that it could have been used to discredit the witness to the
degree that an acquittal would have been likely. Without going into the merits
of the particular case, the controversy illustrates the difficulty of having the
trial judge decide what. might be used to impeach a witness. The case also
demonstrates the inappropriateness of relying on appellate review to correct"
any mistakes of the trial judge. Appellate courts are less familiar with the
facts and are in a far worse position to determine if the material could ' have '
been used effectively. Deference to the trial judge on factual matters will mean
that few convictions would be reversed for failure to provide classified-Jencks
material. .
,The second major area of disagreement between the bills concerns 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. The Ad-
ministration bill and the Biden bill in the Senate, S. 1482, permit the govern-
ment to make an ex parte in camera presentation to the court of the reasons for
classification before the court determines whether the information is admissible.
Although not intended by this provision, the court may well consider the conse-
quences of disclosure in determining admissibility. I would, therefore, urge
that this committee preserve the procedures outlined in H.R. 4736. These pro-
cedures may appear to be more cumbersome because of the careful way the
bill spells out each step. However, in practice they would be no more compli-
cated than the procedures in the Administration bill.
The third major issue is that in the reporting requirements. I want to state
clearly our view that these provisions are among the most important in the bill.
I want to reiterate my earlier point that the problem in this area is not "gray-
mail" at all, but the governmental will to prosecute. By requiring the adoption
of procedures and reports to the Congress, th?, legislation would make it less
likely that fears of embarrassment and protection of one's colleagues could
successfully masquerade as national security concerns. These provisions do not
in any way interfere with the Executive's responsibility for determining when
prosecution should be pursued. That power, as are 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 Con-
gress.should create a special office to conduct all prosecutions involving ? classi-
fied information. .
.Mr. Chairman, that completes my prepared remarks.
Mr. HALPERIN. And I would like then,-if I may, iii 'the int'e'rest of
time, just to summarize the points that I made.
Mr. Muipi-ry. Without. objection.
Mr. HALPERIN. I want: to begin by commending the committee for
the testimony that it is going to hear this afternoon from experienced
defense counsel. I think it is extremely 'important`that 'their 'views and
their experiences be brought to bear. In conversations with them thus
far we have already identified a few points where I think there are
ambiguities in the bill that were, not intended, some of which I will
mention; and I think therefore it is likely that there will have to be
some amendments to the bill to deal ' with ambiguities and problems
deriving from the experiences of those attorneys.
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As you 'know, *e view this bill 'as creating a potential problem in
the degree to which it in 'anyway restricts the rights of defendants. "
We` do believe that it is'pos'sible to draft legislation which does not in
any way reduce the rights of defendants and at the same'time provide
for the' kind of early procedure in deciding what can be admitted,,
which' as the Defense Department witness this morning testified is the ,
key reason'why the Justice Department wants this bill. But I think it
is important in providing for that particular purpose which is the
central purpose that the 'Government has, that we not go beyond that
to; do things.that are unintended or which in anyway changes. the
rights of criminal defendants.
Now, I think' it is important to be clear in the legislative history
that'the bill does not do'certain things, that it does not authorize secret
trials; for example, and also=and this is one of the points [ want to
mention because I think there is an ambiguity in, the legislat ion-that
it does not inhibit the rights of defendants to release information out-
s'ide` of the trial which they already have in their possession.
Let me give you one of the hypotheticals that has been. suggested
might be covered by the literal wording of this bill. If the Govern-
ment, instead of bringing the civil suit against the Progressive maga-
zine for' publishing the article that deals with the concepts of the
hydrogen' bomb, had 'indicted the editors of the Progressive for con-
spiracy
to violate the atomic energy statute by releasing this inform a-
tion, the Government could' then go into court under. this.bill and:get
a court order that it could not release the content- of the article in con-
nection with the case without the permission of the court. The way the
bill is Written, that order would appear to apply not only to the court
proceeding's, but -to the publication of the article in the Progressive or
in some other form.
I don't think that is intended, but I think if you look at the literal
meaning; the'literal.wording of 'section 102(a) (1), it says that the de-
feiidan't shall not disclose or cause the disclosure of such information
unless' authorized to do so 'by the court in accordance with this title.
I assume that was meant to mean shall not release such information
iii connection' with the proceedings in the court case, but I think it is
important that a change be made to make clear that the Government.
cannot.getprior restraint by-bringing a criminal indictment and invok-
ing:'these. procedures.
'T> ie'Wre several fundamental principles' which the American Civil
Liberti'Union believes must be 'adhered to, and adhered to precisely,
if-this legislation is. not to reduce' the rights of criminal defendants.
In my view; as I read H.R.. 4736, it does not violate those principles, but
I have to say 'that in my view, the administration bill does violate those
principles. Three 'of'the items which I discuss in my 'testimony and.
which were'd'iscussed in the Justice Department testimony I think do'.
raise fundamental cohstitutional'issues, although the Justice Depart-
meint is trying to suggest that it simply, that we had overblown the
significance of these. And ' I think the testimony, with all respect, is
nnisleadinn in that it suggested these were not issues with which''the:
Supreme ou'rt had already..--dealt. AsItryto..suggesHn my statement
arid is I shall refer to briefly, I think the Supreme Court has already'
dealt, and dealt very-precisely and very clearly with'these issues.
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The first one - involves, the question of the standard. I: think the. Su-
preme Court has been absolutely clear in quoting a number of times
with approval the Andolseheck decision of Judge Learned Hand, .and
in the Alderman decision, the Supreme Court said what the standard
was, and the standard was exactly the one that the Justice Department
does not want. The Supreme Court said in that case that arguably
relevant material, arguably relevant material, whatever, iits, impact on
national security might be, must; be` disclosed to -the defenddnt'.in a
criminal trial,, that the fact that the information is classified cannot
change the standard.
And there, of course, the Supreme Court was talking about wiretaps
of suspected Russian agents, and indeed, apparently wiretaps on, em-
bassy facilities. And it said, and the court was unanimous, though it
differed on other issues, in believing that arguably relevant informa-
tion.must be disclosed.
I think that is the standard. I.think it would be a great mistake, foi.
this committee to try to change, the standard. I don't think.constitu-
tionally. it could do so, and indeed, I would urge you to make clear in
the legislative history that there is no intention to change the stand-
ard, that you reject the administration's proposal that the. informant
standard, which I think has no relevance to this kind of situation, ap-
ply, and that you make it clear that you-intend to leave the law exactly
where the Alderman decision left it, that arguably relevant material
must be disclosed, whatever its impact on national security.
Now, the second issue has to do with whether the Government or the
trial judge should decide whether information is properly classified
and these procedures should be invoked. Our view is thatthe standard
of classification is sufficiently low that it is not a real safeguard'and
that it is a mistake to get the trial judge into deciding in these circum-
stances why the information is classified or whether it is classified. The
decision of the Supreme Court has said it is' for the Government to
make and not be assumed by the trial judge, of deciding whether infor-
mation is sufficiently a threat to national security that the Government
should not go forward with the trial..
The third issue is that of reciprocity, and I. think there is a funda-
ment ' al constitutional. issue, and it goes to the right,of a criminal de-
fondant to remain silent, the right of a 1criminal defendant not, to
reveal information prior to the Government's case or. during the
Government's, case, or indeed ever. Criminal defendants have the right
to remain silent at all times. This bill proposes a specific obligation on
criminal defendants. First, it requires them prior to trial to notify
the Government. when they intend to use classified information that.is
in the possession of the defendant. And second, where the information
is in the possession of the Government and the defendant have got;it;on
d scovery, it requires the defendants. to explain in advance how they
intend to use that information because in,order to participate in that
pretrial hearing on relevance, they must, explain.. to the judge., what
their legal theory is and what their evidence is that makes this infor
mation relevant. And when you require a criminal defendant-I think
the Supreme Court has been very clear-when you require a criminal
defendant to reveal information prior to trial that he or she otherwise
would have the right to remain silent about,.you must provide reciproc-
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ity, and the reciprocity must equal the injury or the possible injury
that is done to the defendant.
Now, the Justice Department suggests that since the purpose here
is not to gain an advantage for the prosecution but simply to permit
an orderly procedure, reciprocity may not be in order, but the issue is
not-the purpose of requiring this information to be revealed, it is the
consequences of it. And the consequences are that the Government will
know what the defendant intends to do and will be able to address its
case in chief to deal with that information. And that I think must be
dealt with by reciprocity. It is not appropriate to leave it to the judge
to -decide whether there should be reciprocity. I think one always has
different experiences depending on the side of the table you are on. The
notion that judges are always lenient in discovery is I think not the
experience of lawyers who have defended in cases that might be in-
volved here, and I think it is up to the Congress when it establishes a
new rule requiring defendants to speak before trial, that it make ab-
solutely clear to the trial judge that there must be full reciprocity for
those disclosures.
Let me turn then to three, areas of remaining disagreement in addi-
tion to those which I frankly had hoped were behind us in the disagree-
ments about this bill. The first and most important has to'do with the
Jencks Acts. It is important to understand that this is an issue that
the Supreme Court has specifically dealt with, dealt with in the Dennis
case, in which the issue was precisely the question of whether where
information might be, classified the trial judge could make the determ-
ination that the information 'could not be used effectively for impeach-
ment. The. Supreme Court dealt precisely with this issue and said 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 con-
scieniously made,, would exhaust the possibilities. In our adversary
system, it is enough, for judges to. judge. The determination of what
nay. be useful to the defense can properly and effectively be made only
by the advocate.
And the Court went on to note that the trial judge's 'function was
limited to such matters as protective orders, making it absolutely clear
that it had in mind classified information when it said, very simply,
the determination can. properly and effectively be made only by the
advocate.
.And what the Government proposes here is to in effect try to over-
rule that decision,. which. I think is constitutionally based, and never-
theless is based in a fundamental notion of commonsense, namely, it is
only the advocate who can decide whether something can be used for
impeachment.
Now, we have a.precise example of that in the IJumphrey-Truong
case. Since you are hearing, this afternoon from Mr. Tigar, who was
a counsel for the defense in that case, I will not go into it. Suffice it to
say, the record in. that case reveals a disagreement on whether a piece
of Jencks material could have been used effectively for impeach-
ment and showed precisely why, in my view, . that decision cannot in
fact be left to the trial judge.
Finally there is the issue of reporting requirements, and I think
the reason why these requirements should be in the bill were stated
very ' clearly by the witness from the Defense Department who sug-
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gested that confronted with the choice', the Government might.' go
forward rather than report, and I think that the reporting require-
ments are an essential- element to insure that these provisions are not
used to avoid embarrassment or other forms of improper reasons to
withhold information.
I think one does not have to call into' question' the integrity of the
current Assistant Attorney General to suggest that 'in the past and
perhaps in the future people might classify information within the
executive branch to avoid embarrassment. Indeed, every study that
has -been done for the Government of the classification system has
concluded that information is improperly classified, and every Presi-
dent who has issued a new Executive order, Mr: Carter, Mr. Nixon,
Mr. Eisenhower, have all said that the previous system did not work
and information was improperly classified'to avoid embarrassment.
Nowi it may be that a miracle has occurred in the last 14 months'
and no longer is any information classified for embarrassment but
that miracle may fade away, and I think these reporting requirements.
are'important.
I want to mention briefly two other issues which are not in my
statement. The first'has to do with the section for. the Government
when it presents-information, section 4(b) I think it is in the Govern-
ment's bill, and section 109 (b.) in the. chairman's bill. I think it is,
important to rewrite those provisions to make it'clear that-all of the
safeguards in rule` 16 (b) (1) requiring .information to be- put in writ.
ing the records preserved and so on, be included in .this. provision,
and that it be made clear in the legislative history, that. the purpose
is simply to permit the court to exclude material which is not arguably
relevant, to the defense, and 'that the intention of. that provision is not
to allow the Government to withhold information which is'arguably
relevant. .
Finally, I want to say something 'about this issue` about whether
putting information into evidence declassifies it. I -have no objection
to the provision that is in the bill since the administration seems to find '
it useful to be able to' say that it is not declassified. But I think' it is.
important that the suggestion in the -testimony not be 'permitted to'
stand, namely, the suggestion that you can give evidence- to a jury in n-a
criminal trial and not have that evid'ence made 'public. I think that
violates the provisions of. a public trial. I ,think' it is clear that if the
evidence goes' to' the' jury; it'is `in fact-public; and that.?if? the, evidence
is submitted, it is part of the public record of the trial-I'm not talking
about pretrial proceedings, I'm talking about the tr'i'al'itself-is avail-
able in the office of the court for inspection'by anybody who wants to
see it. -
Now, if the Government wants 'to nevertheless say we haven't de-
classified it and therefore we don't have to'give it to you in Washington,
you have to go to the trial court, subject 'to whatever rules the judge
has to get-that information, I don't think there is any objection to it,
but I would not want to leave. on the record, the implication, that. by
including that provision in the bill this committee was sanctioning the
notion that one might`have'a secret trial in which information was
given to the' jury but could not be repor'te'd :publicly in the newspapers
and 'would not be available to spectators sitting .in the courtroom.
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That, completes the summary of my. statement, and I am pleased to
be here and I would be delighted to answer questions.
Mr. -MURPHY. Thank you, Mr.. Halperin.
With reference to your comments on protective orders, would not
the inclusion in the statute of the details which you feel necessary, such
as a clearing of persons who would examine classified information,
:suggest more control over the defense than is-proper, and when the
-defendant or his attorney could be denied access to certain material.
Mr. HALPERIN. I think there is some confusion about my position.
I do not favor the inclusion of those provisions. I think that there is
authority, the Supreme Court has frequently
Mr. MurirHY. That is Mr.. Heymann's position.
Mr. HALPERIN. Yes. I think the Supreme Court has frequently re-
ferred to such, to the authority of the courts to issue protective orders
-to protect national security information, and there is no objection to
codifying that in the bill, but I think the judge doesn't need a shopping
list. Indeed, that seems to me contrary.to Mr. Heymann's general posi-
tion that these things should be left to the sound discretion of the
.judges. In this case I am happy to agree with him.
Mr. MURPHY. Now, you note that your primary concern is the first
amendment ramification of the proposed legislation. Is it your position
that a judge cannot prevent the defendant from publicly disclosing
-classified information information he or she intends to use at trial?
And does it make any difference in your argument whether or not the
.classified information was obtained from the Government?
Mr. HALPERIN. It makes all the difference. I think the trial judge can
provide information to the defendants on discovery and issuean order
-which prohibits disclosure of that information in connection with the
case. or in any other forum, but I think if, the information is in the
possession of the defendants prior to the initiation .of the case, the
protective order can only be applied to the case itself and cannot pro-
'hibit the person from making a speech or writing an article.
'Mr. MURPHY. What if the information came to;the defendant in'the
. '
course.of his employment?
Mr. Hn .i?Fh ic. I don't think that affects it. It maybe that the Gov-
ernment could indict, the person for releasing the information, and it
may be, under the Government's theory of the prior,-restraint laws,
although-not mine or the ACLU's,-you go, into court and get a prior
restraint order. But I think it. is important, indeed.. essential, that this
-bill not be the form for authorizing prior estraint on information that
is in the possession of individuals prior to, the trial. I think that is a
difficult, complicated area,. one which the committee might want to
-consider in separate legislation, but I think this bill should not be used
in a way that encourages-the Government to indict people so: as to keep
.-them from speaking out on information of some other kind.
Mr. MURPHY. I notice in your prepared-remarks, Mr. Halperin,'that
you criticize one provision of our bill, and that is the provision that
-would require the Justice Department to bring tons a report of those
-prosecutions they have declined and reasons therefor.
Mr. HALPRRIN. Again I may have written sloppil.
I am strongly in support ,of those provisions. I* don't discuss them
'very extensively . ? .
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written presentation ?
Mr. IIALPERIN,. Well, I must'say I don't'see any objection to with-
holding 'a particular name if the circumstances are that the ' person's
life would be directly in jeopardy. I must say, I have not studied these
provisions very closely. I don't read them as requiring the provision of
the name to make the explanation of why one is dropping the case.
If one says the reason is that a. name is relevant to the defendant but if
we reveal that name an active American agent would be killed and
therefore we dropped the prosecution, I don't see that that requires,
you at all to reveal the name of the person.
I must say that it seems to me it ought to be possible, and I thought
these provisions did that, of writing reporting requirements which
require reports to this committee which again I would think is essential,
without requiring revealing of particular information which the Gov-
ernment feels should be conveyed only orally or conveyed not at all, bit.
simply the generic category, and if the provisions are read to require
that, it seems to me it ought to be possible to change them without going
to the very informal system. that the Justice Department was suggest-
ing which just says, well, if this committee is interested it can call us up
and we'll testify. I think there is some place in between those two with
formal reporting requirements but with some flexibility, and obviously
the committee would be able to react by saying no, that argument
doesn't seem right, tell us more, some flexibility to withhold informa:
tion of a kind which was not relevant to the determination but which
would have very serious consequences.
Mr. MURPHY. Mr. McClory ?
Mr. MCCLORY. I gather you don't really attach too much significance
to this legislation as far as prosecutions or lack of prosecutions, or
interests or rights of defendants, are concerned. You indicate on pages
2 and 3 of your testimony that you do not believe that these procedures
will have any real impact on prosecutions for unauthorized disclosure
of information, and you indicate that it is more the lack of will on the
part of the Justice Department with regard to Richard Helms and
Patrick Gray that has already resulted in the dismissal against Helms
and I guess matters are still pending so far as Pat Gray is concerned.
Do you want to elaborate on that a little bit?,
Mr. HALPERIN. Well, I think that, my judgment is that in many of
those oases the Government could have gone forward. All these, I
should say, occurred, with the exception of the Patrick Gray, situation
that.has not been resolved, before the current occupant of the position
of the Assistant Attorney General, Mr. Heymann, so that nothing,I
say here I think is intended to reflect at all on his position or his report
on what has happened since he has been in office.
My view of the Helms case, and it is one that I have looked 'at in
considerable detail, is that it was not necessary to reveal any informa-
tion which had not already been made public in order to go forward
with that prosecution, and I think the decision not to go forward had
to do with an unwillingness on the part of some people to prosecute
somebody who they felt had dedicated his life to the service of the
Government and had done things in good faith.
Mr. MCCLORY. Do you think that it is really an excuse when it is
claimed that the absence of this kind of legislation prevented them
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Mr. MuRpn . Would you favor an oral presentation of 'that or a;.
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51
from prosecuting, that this whole legislation is regarded 'as an excuse
or an alibi for the Justice Department to not prosecute, and they say
now we can do it and we couldn't before?
Mr. HALPERIN. And now they may do it, yes. Let me say two things
about that. One is I think there is a separate problem which I think as.
reflected in the Helms case which the legislation cannot deal with, and
indeed, I would object if the legislation tried to deal with it, is precisely
the first amendment point which I mentioned before. If the graymail
or blackmail is done not in the context of the trial but simply if you
prosecute me I will publicly reveal the following 17 things, I don't
think there is any way the legislation can deal with that. I think if
it is' a crime to reveal those things, the Justice Department ought to
point that out to the person, but I don't think the legislation can deal
with that problem.
Second, what I do think the legislation can do is
Mr. MCCLORY. Well, those things are going to be dealt with in
camera, are they not. As in the Foreign Intelligence Surveillance Act,.
we have a secret hearing.
. Mr. HAL PERIN. Yes, but there is nothing-we all seem to be indicting
ourselves here. If I am indicted and I say to the Government I will
reveal something that I-I will call a press conference next week and
reveal something that I learned while I was on the staff of the National
Security Council if you persist in going forward with this indictment,.
this legislation can't deal with that problem, and I think that part of'
the graymail problem has been that kind of threat rather than a threat
to do something within the'course of the trial.
Mr. MCCLonY. Well, I think you are talking about the commission of
a second crime, though.
Mr. HALPERIN. Yes, right. Well, it is not clear, though. Sometimes.
the revealing of information publicly is not a crime. I mean, as you
know, what is-but that is a muddy field. But that's right. And insofar
as it is a crime, I think the way to deal with it is to say if you reveal
that, we will indict you for this other crime. I don't think this legisla-
tion can deal with that.
What I do think this legislation can do-and I don't want to be
misunderstood-is exactly what was. described in the colloquy up here,
between the Defense Department and the Justice Department, that is,
in a pretrial situation there is often an argument about what are we
likely to have to.reveal in the course of a trial. I can see the Defense.
Department or the CIA taking the position : we don't want to begin
the trial, introduce the evidence in our case, and then find when we get
to'rtlhe-defendant's-case'tliatwe have'to reveal a great deal more classi-
fied information, then be forced to drop the prosecution because we are
not prepared to reveal that, but we have already done the damage of
revealing the information in our own case, and therefore since it is
uncertain what the judge will permit in on the defense, we ought to-
drop the case.
I think what the bill does deal with effectively is precisely that situ-
ation. The Government can go in a pretrial proceeding, get a ruling
from the court about what is going to be introduced during the entire
trial, barring surprises and uncertainties, and then makea reasoned
decision about whether it wants to go forward. I think it is in the na-
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tional interest-that that be done, and I think the bill does that and does
that effectively, and my hope is that that will, in fact, lead the Govern
ment to go forward with additional prosecutions in these areas.
Mr. MCCLORY. You expressed apprehensions that .section 102, I be-
lieve it was, of Mr. Murphy's bill; would permit an additional criminal
remedy against the publishers,,of the Progressive magazine, and, sug-
gested-at least I interpreted your statement to be-that there should
never be any right to indict to prevent prior publication.
Is that your position?
Mr. HALPERIN. Yes, I think
Mr. MCCLORY. Isn't that right qualified? I mean, it ,would seem. to
me that there could be certain information which, if published, would
` indeed jeopardize our national security, and the right to .prosecute. to
prevent that publication should exist.
Mr. HALPERIN. Well, certainly the Government can prosecute some-
body who it thinks is conspiring to break the law, and in that context
it can certainly seize the evidence so that if you, in'fact, come u'pon,a
Government official about to give something to' a Russian agent, you
can seize the 'document and prevent him from transmitting it.
I don't think the Government has the right-and. I certainly, do
not think this bill ought to convey the right-to get 'a prior restraint
order on releasing information which is in the head of an.individual
by indicting him for.a different crime, which is what I think is,.at
issue in this legislation.
Mr. MCCLORY. Well, you know they had the old example-I guess
it is a 'World War I example, the time 'and place?of the troopship
sailing. Is that
Mr. HALPERIN. Well, I mean, there is 'a separate issue of whether
prior restraint on the'release of -information, 'relating; to, the national
security is ever appropriate. That is an., issue which was before ,the
Court in the Pentagon Papers case and, is before. the courts in.?the
Progressive case. My own view is that such prior restraint is. always
a violation of the first amendment,..but that issue, it seems.. to me, this
committee ought to leave where it is and let the' courts deal, with. it.
What; I would' object to is ,a provision ,;in,the. bill which could be
read as specifically providing additional authority to the court to
issue prior restraints against speech by, criminal defendants of. .in-
' formation which they had before they were indicted..
Mr. MCCLORY. Well, of course, we are.trying.to deal with .a prob-
lem that exists in a criminal prosecution, and incidentally could : be
interpreted to .relate to a criminal prosecution such as the Pentagon
Papers case, the Progressive case, the Chicago Tribune case, or what-
not. It seems to me that we have. to let the,issue lie where it is.
Well, OK; thank you very much.,
Mr. MURPHY. Mr. Mazzoli. .
Mr. MAZZOLI. Thank you, Mr. Chairman.
Mr. Halperin, I appreciate your testimony. It is helpful and :will
be helpful as we proceed further on the bill. .
In the early part of your statement you talk about the "arguably
relevant" Supreme Court holding--I believe the quote. was "arguably
relevant material must be disclosed whatev'er,its impact on the, national
security.".
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Just to advise me, when you say' "must be disclosed," do you- mean.,
disclosed to the defendant with the' question of admissibility being
later, or do you mean published?
Mr. HALPERIN. No; I think what 'the Supreme Court was talking
about here is disclosed to the defendant, and it went 'on to say-in
another case, it said that the courts could issue protective orders.
SoI think there are two-issues here. One is, any Information which'
is arguably relevant has to be disclosed although it can be with a,
protective order to the defendant so that he is in the position to make '
the, case that it is admissible. Then when the decision comes as to'
admissibility, I think' there again= the standard: must-'be exactly the
same as it would be if the -information were not classified.
Mr. MAZZOLI. Do you think there is really a need for any addi-
tional legislation at all in this whole area?
'Mr. HALPERIN. I think the one clear need-and again the point that
the Defense Department seems most interested in-is a provision which
makes it clear to trial judges that they can require criminal defendants
to reveal prior to trial what classified information they intend to use`
at trial, to get a ruling prior to trial as to whether that information
will be admissible. My view is that that is the only thing that this
bill does that is not already in the criminal procedures and the Federal
rules, and one could strip the bill down just to that and accomplish the
purpose; that might avoid some of these ambiguities.
On. the other hand, I think there is no. objection to restating other,
powers that already exist, to put them in one place, provided it is made
absolutely clear that, we -are` not 'changing any standards and not'
depriving'defendants of any rights. But I think that one change in pro-
cedures.is appropriate, would make a significant difference,, and could'
make areal difference to'the ability of the Government to bring prose-
cutions, and particularly the ability of the Justice Department to per-
suade the Defense Department and the CIA that they ought to b6'
willing to-go a1ong.with prosecution.
Mr: MAzzoLI. Well, I certainly thank you very much. You have been
very helpful.
Mr. MURPHY. The Chief Counsel?
Mr. O'NEit. Mr. Halperin, would your position in regard to the
Jencks section in H.R. 4745=your opposition to it-be lessened if the'
defendant had an opportunity 'to examine the statements the Govern-
ment' believes are consistent; with an opportunity later to 'argue ? in
camera,as to inconsistencies, that is to say, keep the standard that the
Governm
ent proposes' but' disclose in camera under protective order ,e.deferidingattorney
to tl
Mr. HALPERINN. Well, my understanding is that you don't need to
amend the Jencks Act to do that, that is, turning over the information'
to the defense counsel, which is all that is at issue here, does not mean '
that he or she can introduce it at the trial. The Government can then,
object to the introduction of that sentence at the trial precisely by argu-
ing that it is not inconsistent, and that the trial judge then. would make
a ruling as to whether it was inconsistent or not. I think under the other
procedures of the bill that' argument about that could, in fact, be in
camera, provided it was an adversary proceeding.
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What the Government is trying to do is to, prevent that information
from reaching the defendant on the grounds that it is so sensitive that
it can't be turned over even under a protective order.
So I think what you are proposing is already in fact in the bill. and
does not require any amendment to the Jencks Act.
Mr. O'NFIL. You stated earlier your opposition to the interpretation
voiced by Mr. Reymann concerning the question of declassification of
documents at trial. The kind of thing that you are afraid of is what
happened,in the Kampiles trial, as I,understand it. There a document
was introduced into evidence. was not' declassified, aiid was.-not nude'
available publicly, nor has it been. It has, been sealed with the rest of
the exhibits and remains under seal pending the appeal which has been
taken in the case.
Do you feel that was an inappropriate order by the district court?
Mr. HALPERIN. Well, I think in part, at least in light, of the Supreme
Court decision of a few days ago, it turns in part on whether the de-
fendant concurred in that. I think it is still-I would have said a few
weeks ago that it didn't matter, that the defendant could not even
concur in that, but even under the current Supreme Court interpreta-
tion of public trial, it certainly cannot be-done'?over the objections; of
the defendant, and I think that case was wrongly decided, if I may
say so, and that the public trial provision, as the dissents in that case
rigorously argued, are a public right and not simply the right of the
defendant.
. But certainly there is nothing in that decision or any other decision
which suggests that that can be done over the objections of the de-
fendant, and I don't know whether the defendant in that case con-
curred or not.
And my view would still be that if it was introduced in evidence,
it is a public record of the court and is subject to inspection at the
courthouse. .
Mr. O'NEIL. Lastly, you say that you. are greatly in favor of the
provision of title II of. H.R.4736 which requires reports to the Intel-
ligence Committees of cases involving national security matters where
prosecu'tioii -does`not ensue.
What do you say to the criticism that this kind of reporting is going
to politicize what has essentially been an independent- prosecutorial
function heretofore? That is to say, committees of Congress' may urge
prosecutions where they may be inappropriate, and they may be able
to discourage appropriate
Mr. HALPERIN. I would assume that these provisions would.:not
be used, and I think it would be inappropriate for them to be used for
the committee to try to reverse a decision that has been made on a par-
ticular prosecution. As I read the provision, the report would occur
only after the decision had been made and would be for the purpose
,of establishing appropriate procedures and giving guidance and gen-
-oral policy. I don't think it would be appropriate to try to press the
administration in a. particular instance to carry forward a prosecution.
But I' think it-I mean, I don't know what the word "politicize"
means in this context. Clearly the administration takes account, in
these decisions whether the public value of the prosecution outweighs
the harm from releasing the classified information, and what I think
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these. provisions insure is that that decision is made on the basis of a
genune concern about national security and not a concern about con-
cealing improprieties or avoiding embarrassment, and I think for that
purpose these provisions are extraordinarily important.
Mr. MURPHY. Dir. Go] chnan ?
Dir. GOLDMAN. Does the ACLU support the provision in Mr. Mur-
phy's bill that requires a bill of particulars?
Mr. HALPERI\. Yes; it does.
Mr. Go bii'. I thou ht' at one'point you stated-that there shouldn't
be any changes in existing law other than those which are necessary and
dictated by a special circumstance.
What do you feel the special circumstances are here, in this case, that
requires a bill of particulars, unlike in other cases?
Mr. HALPERIN. Because of the-are you talking about the
A'ir. GOLDMA . The names of the witnesses that will be used in
rebuttal.
Dir. HALPERIN. Are you talking about section 111? There are two
bills of particulars I think required by this bill. One is section 107 and
one is section 111, and I have a different answer depending on which of
-the
Mr. GOLD-MAN. WW7ell, answer both.
Air. HALPERIN. The section 107 one I think has to do with reciprocity ;
naively, that where in the pretrial conference the defendant has to
?explain how he intends to use the evidence in order to win the argument
about relevance, the Government should be required to explain its
theory in relation to that information. I think it is a form of reci-
procity.
Air. GOLDMAN.'W1'ell, wouldn't that be answered in the. requirement
that the Government has to state how it will rebut the specific mforma-
-tion that it doesn't want to be disclosed?
Mr. HALPERIN. No; because that only occurs if the Government loses
and the information is going to be introduced. This is reciprocity for
the purpose of the hearing to determine relevance which would occur
prior to the decision by the court as to whether to introduce the
-materiel. .
Section 111 is in fact a new provision, and if the Government had
:ai:y theory of reciprocity it wanted for this provision, I think that
would be appropriate to discuss. I was glad to see the Justice Depart-
inent endorsing the provision this morning. It removes what in my
-experience is an enormously unfair procedure which arises in trials in
which there are large quantities of classified information at issue. The
'defendants have no way of knowing which information the Govern-
ment will rely on, and here is a case where I could tell you from. my
'personal experience, the notion that trial judges will always issue
?orclers requiring bills of particulars when the defendants feel that the
interests of justice requires them is simply not the case.
. In both the T.S. v. Russo case, which I was involved in, and the
r7-8- v. Humphrey and Truong, such bills of particulars were not
-issued, and the defense lawyers were faced with the problem of having
to react very quickly at the last minute to testimony drawn from very
lar`xe numbers of panes.
So I think that this provision is in the interests of fairness. It is a
changein the rules in that it directs a bill of particulars in those cir-
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cumstances, and I 'Was pleased to see the Justice Department position
that it is a fair position and should be enacted.
Mr. GOLDMMAN. In your'opening statement you said that the Constitu-
tion flatly requires that if-the defendant is forced to disclose informa-
tion to the Government, the Government must provide reciprocity.
When the ACLU testified before the Judiciary Committee during the
94th Congress on the rape evidence rule, there were a number of ob- -
jections raised, but none to that. point. At no point was 'there any
testimony on behalf of the ACLU that reciprocity was necessary. And,
as the bill came out of the committee and went to the House floor, the
ACLU gave-it full support.
Is it now the opinion of the ACLU that that rule is unconstitutional
because reciprocity is.not provided for?
. Mr. HALPERIN. I think that that"is a question I should like to take
under advisement, and I would like permission, if I may, Mr. Chair-
man, since that was not a-that is not' a part of the ACLU that I
am involved in and I don't know about that testimony, I would like
if I may to submit for the record a statement which explains what
we see as the difference between the rape provision and the provisions
in this bill.
Mr. MuiiriIY. Without objection.
[The information referred to follows:]
STATEMENT or ACLU
When Mr. Halperin was before the Committee, he was asked whether the
ACLU has insisted on "reciprocity" in its presentation on the rules of evidence
relating to rape prosecutions.
The -rape evidence'bill is not comparable to the legislation now proposed, but
it is interesting, to note that. the' ACLU; in testifying about the rape bill, did
support a pretrial hearing at which the defense could elicit testimony from pro-
secution witnesses prior to seeking. to elicit such testimony in open court. This
pretrial,. in camera hearing proposed by -the ACLU would have served. the same
"reciprocity" function' of protecting the interests ? of both' the governent and
the defendant as is, served by the procedures in the Committee bill.
Mr-'. GoL13iAN. Thank you. .
Mr. MURPHY. The hearings will be recessed until 1:30 this afternoon.
Thank you.
[Whereupon; at 11:44 a.m., the' subcommittee recessed, to 'recon-
vene-at 1:30' p:m., the same day.]
Mr. Munriir. Ladies and 'gentlemen, the hearings of the'Permanent.
Select Committee on Intelligence, Subcommittee on Legislation will
come to' order.
This afternoon's session, our first witness will be Mr. Michael Tigar.
Mr. Tigar is well known for his participation in a number of es-
pionage trials. He appeared before the subcommittee in its earlier hear-
ings, on espionage laws and leaks. His testimony then impressed us,,
and we welcome him back.
Mr. Tigar, please proceed with your statement, unless Mr. McClory '
would like to say something.
Mr. MCCLORY. I join in welcoming Mr. Tigar here this afternoon.
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STATEMENT, OF .MICHAEL TIGAR ESQ., TIGAR & BUFF.ONE,
Mr. TIoaR. Thank you, Air. Murphy,Mr. McClory.
I have a prepared- statement .which I.?have furnished to the com-
mittee, and I will not tax your patience or,burden the record by,read-
ing it to you.
Mr.:MVRgH'Y. Without,objection it will be ordered.
Mr. TIGAR. I would like it made a part of the record, thank .you'very
much, Congressman.
[The preparedstatenient,of Michael, E. Tigar follows:].
PREPARED STATEMENT BY MICHEL E. TIGAR
appreciate the opportunity to appear,. again before the Committee now that
the draft, legislation has been,. prepared. I will not repeat the, observations of
Morton IT Halperin, with most of which I agree.
Iha.ve'viewed these bills from the perspective of atrial lawyer and law teach-
er. As; I.said; in, my. last appearance here, any legislation on the use of classi
fled information in criminal prosecutions. should be.both narrowly drawn and in-
tegrated' with,the existing mechanisms' for pretrial rulings,on evidenee and pre-
trial determination of.'disputed issues of law. 'The bitter experience' of.other
nations teachers us that creation of a special body of law for offenses involving
the security or secrets of the State tends to foster repression: The example of the
Soviet.Union comes readily to mind; but the experience of France is perhaps more
instructive : the creation of a special tribunal with special procedures for offenses
involving the "security of.the State" has' contributed to distortion of the criminal
process. Judge Learned Hand in United States y. Coplon, 185 F.2d 629 (2d Cir.
1950), warned against invoking the national security as a reason for limiting
a. defendant's right to contest allegations against him or her.
Moreover,, to the extent that the Committee's objectives can be attainedoby,in-
tegrating its proposals into'the Federal Rules of Criminal Procedure and the Fed-
eral Rules of,Evidence, the Congress will have ensured that this legislation is
subjected to continuing review by the, distinguished lawyers and judges who made
up the Advisory Committees on the, criminal rules, and on evidence by the
Supreme Court of the United States, and by committees of the Congress. Such
,continuing review is particularly helpful when one is seeking, as.here, to chant
new paths and to bring order out of a' conflicting body of case law.
What I have said underlies my.,support for, the. concept of H.R. 4736, although
not for all of its provisions; and my opposition to H.R. 4745 and to the companion
,bill in the Senate, S. 1482. , .
Y. H.R. 4736 '
"Section 101 provides an orderly means for determining important issues arising
In - bases. involving classified 'information. This section should, however, be?legis-
lated `into existence as a part of existing Federal Rule of Criminal Procedure
'17.1, dealing with 'pretrial conferences. The mandatory provisions of..? 101
could then be included, but it would be clear that'admissions made by the de-
fendant or his attorney could not be used against the defendant unless reduced.to
writing and signed. Such a provisionwould encourage free and open discussion 'of
disputed issues.
Section 102 provides. a mechanism for pretrial ruling on the admissibility of
evidence as-to which- the government claims some 'sort of executive or state
secret privilege. Such pretrial determinations. of relevancy are to' be encouraged.
It would be fruitless-to hope, and the Committee's bill does not seem to envision,
? that all relevancy 'determinations can be made pretrial. Unanticipated lines of
cross-examination, to give an example that comes readily to mind, may 'require
rulings during trial. But the procedure outlined in ? 102 seems, on the 'whole, to
be fair. I would suggest that -the. Committee incorporate: ? 102 into the: Federal
Rules of?Evidence; Not only would'this provide the continuing review of.which
I spoke. earlier, but it would indicate to trial judges that. relevancy determina-
tions involving classified information are no different from those involving-any
other sort of proffered evidence. It is not, I trust, the intent of this bill to
change the rules of evidence on admissibility. If classified information is relevant
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to any' claim or defense, or is useful in the cross-examination of any government
witness, a defendant has an absolute compulsory process and confrontation
clause right to use it. (See generally P. Westen, Compulsory Process, 73 Mich.
L.Rev. 71 (1974) ; P. Westen, Compulsory Process, II, 74 Mich.L.Rev. 191 (1975) ;
P. Westen, Confrontation and Compulsory Process: A Unified Theory of Evi-
dence for Criminal Cases, 91 Harv. L. Rev. 567 (1978).) If the government wishes
to rely on its privilege against disclosure of such information, the rule under
H.R. 4736 continues to be that the government must pay the price in terms
of dismissal or an adverse finding as to some issue. Therefore, the procedures
outlined in ? 102 should be included in Articles 4 and 5 of the Federal Rules of
Evidence.
I am concerned about the provisions of ? 103. Despite the cautionary language,
that the defendant's right to a fair trial will not be prejudiced thereby,", I feel
this section may be seen by trialt judges as an invitation' to restrict the right
of cross-examination. Moreover, treating classified information differently from
other kinds of evidence enhances the mystique of the classification stamp and
therefore inevitably favors the prosecution in a criminal trial. If such restric-
tions are to be enacted, I would'prefer the section to read "the Court shall not
grant such a motion of the United States unless it finds that the defendant's
right, to a fair trial will not be prejudiced thereby." But, as I say, making
special rules about classified information runs counter to reason and experience.
(See generally United States v. Coplon, supra.) If any procedure that is outlined
in ? 103 is to be provided, it should be a part of the Federal Rules of Evidence.
Section 104 does provide for preservation of records by the Court instead
of by the government and is therefore preferable to alternative versions. Its
'terms should be incorporated either into Federal Rule of Criminal Procedure
12 or into the Federal Rules of Evidence.
Section 105 enacts what I understand to be existing federal law. However,
for clarity, the sanctions.for refusal to disclose-hi a discovery context should be
made part of Federal Rule of Criminal Procedure 16, and those relating to
refusal to disclose.,in it trial context should be made part. of the Federal Rules
of Evidence. Section 105(b) (3) should, in any case" be clarified to express the
Committee's intention that the government may not rely upon any part of the
testimony of any witness relating to classified information which the government
has refused to disclose.
Section 106 is reasonable, but should be incorporated into the Federal Rules
of Criminal Procedure.
Section 107 is also reasonable, but should be incorporated into the Federal
Rules of Criminal Procedure.
Section 108 provides for an interlocutory appeal by the United States before
or during the trial. All such appeals implicate the defendant's right to a speedy
trial. A mid-trial appeal also enhances the classified information mystique 'I
referred to earlier. The bill does not provide for expeditious determination of
pretrial appeals, and even the time limits on ? mid-trial appeals risk meeting the
same fate as befell the mandatory time limits under 28 U.S.C. ? 1826(b), part of
the Crime Control. and Safe. Streets Act of 1970. All this aside, any additional
grant of pretrial appeal rights to the United States 'should be incorporated into
the existing terms of 18 U.S.C. ? 3731 and be subjected to similar limitations.
That is, the Attorney~Gene'raltshould'certify to the-district court- not onlythetthe
appeal is not-taken for purpose of delay and that "the evidence is a substantial
proof of a fact material in the proceeding." Pretrial appeals should be given cal-
ender preference in the court of appeals. Most important, the provisions of ? 3731
on pretrial release should be followed ; that is, if the government wants a pretrial
appeal with its attendant delays, an incarcerated defendant must be released on
bail. Moreover, it might well promote the orderly administration of justice to give
both the prosecution and the defense the right to appeal, perhaps subjecting both
of them to the certification provisions now applicable to civil appeals of interlocu-
tory orders under 28 U.S.C. ? 1292 (b).
~Section 1.09 should be incorporated into the Federal Rules of Criminal Proce-
dure and ? 109 (b) should contain the caveat that no deletion, substitution, or sum-
marization can-~be done so as to interfere with the due process, confrontation and
cross-examination rights of the defendant.
Section 110(a), providingtfor?rule-making by the'Supreme Court of the United
States, is.a -far preferable foimulftithi to'the;-H,R. 4745 provision that the Chief
Justice alone make the rules. This well expresses my concern that this legislation
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minimally disrupt the existing system for determination of disputed questions,
nnd?be subject to continuing review in the same way as other federal procedural
rules.
Section 111 should be inserted as an additional subsection of.Federal Rule of
Criminal Procedure,16 or as an additional sentence in Federal Rule of Criminal
Procedure 7 (f) . I am in favor of the no-delegability provisions of ? 111.
The 'definitional section, ? 113, should be integrated into the appropriate fed-
eral rules.
IT. H.H. 4745 AND S. 1452
. Perhaps the key to H.R. 4745's defects is in ? 3, which concludes "promote a fair
and' expeditious prosecution," as opposed to "a fair and expeditious trial." These
two bills reflect a lack of confidence in lawyers and district judges, provide-
untistial and unduly complex' procedures to achieve their- ends and seriously
threaten the right of fair trial.
For example, ? 6(c) (2) of H.R. 4745 completely ignores the defendant's right,
to cross-examination on the bias, interest and prior conduct of a government wit-
ness and restricts the use of classified information solely to matters relevant to
an element of the offense or to a "legally cognizable defense".
Both bills vest rule-snaking authority in the Chief Justice of the United States.
Not-only does this provision eliminate any deliberative function the Supreme
Court as a whole might be able to contribute, but it bypasses the function typi-
cally performed by Advisory Committees appointed by the Court and dispenses
with the oversight function of the Congress.
Section 10 of both bills represent an unconstitutional invasion of the defend-
ant's right of cross-examination, and would thrust an intolerable burden on,
trial judges. As the Supreme Court said in Dennis v. United States, 384 U.S.
855; 874-75 (1966) : "Nor is it-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 adver-
sary 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."
This point is well made by Dr. Halperin in his testimony, based on experiences.
which both of us have had in the Federal courts.
Mr. TioAn. The committee's deliberations and the hearings that I
attended earlier are well reflected in the bill that has been introduced'
as H.R. 4736, and the bulk of my comments have to do with that bill.
Basically, I have no problems with most of the legislative proposals;
contained in H.R. 4736. But I would urge upon the committee that,all
of the, provisions with respect to pretrial conferences, rulings on ad-.
missibility `of evidence and the scheduling of. discovery in criminal
cases could be legislated into the Federal Rules of Evidence and the.
Federal-Rules of Criminal Procedure rather than made a separate ;part
of *title 18 or a separate set of'.legislation altogether. I urge that on.the?
cornrnittee?..Ior. the ;following :reaso is. ;
Some, of these procedures are new and, untried. By putting them into,
the- Federal Rules you insure first, that on an annual basis these pro-
visions are reviewed by the distinguished law professors and judges
who area part of the advisory committees on the.rules; second, the pro-
visions are subject to review by all the Justices of the Supreme Court
of the United States in its deliberative function; and finally, if there-
are necessary changes to be made, the provisions are subject to review-
by this House, because this House obviously has to pass on proposed'
amendments to .those rules. That insures not only that this House per
1 -1 1
rms the vital oversight function entrusted to this committee and to
'fo
tbe';Gommittee on the Judiciary, but that automatically you have the,
input from those most immediately. concerned 'with the' day-to-day op?-
eration of this committee.
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For example; section. 101 of your. bill could as well.be an .amendment
to."rule: 17.1. of the Federal, Rules, of Criminal,"Procedure,"and so:.:on.
My, concern with your bill begins with section 103. That permits,.the
court to order the substitution "for classified information of" a statement
'admitting relevant facts, or the, substitution, of. a summary.of?specific
classified information. I grant you that there is the caveat, of fu ding
that the defendant's right to a fair trial would not be' prejudiced,.but
I am concerned, for example; about the-problem of cross-examination:
Where the Government is conducting an ; espionage prosecution.or,, any
prosecution in which a witness is tendered by the Government who,has
had access to classified information, much' of the impeachment material
that a cross-examiner will want to use may be classified.. That. was"cer-
tainly the case in United States v. Truong. We .have now discovered,
Mr: Murphy and Mr. McClory,.by virtue, of an. admission by the Gov-
ernment in the U.S. Court of Appeals for the Fourth Circuit, thatthe
Goyernment withheld from us Jencks. Act material on, the Govern-
ment's principal witness relating, to,her movements in Paris during a
-critical time.
"No one but an advocate knows how to use information about what
precisely a ,witness did. This was especially true in the Truong case,
,where the transmission of classified information constituted the gist, of
the alleged offense. I do not say that this withholding of information
was intentional, but the CIA was telling: the Justice: Department that
they had everything, and that turned out to be not quite true.
Imagine the situation in which the trial judge is confronted with
language like section 103, and the Government, .ex parte and in camera
according to your. bill, urges the. court, "After all,, this isn't really
going to be terriby helpful to the defense, you can furnish them" with
a ,summary. of.the,reports the witness filed.at. a prior time."" Imagine
the trial judge trying to make that determination basically in igno-
rance of what the defense s.trategyis and. without the benefit of an adiro'.
cate's view of the trial: That is my concern with section 103. The
rest
of the procedures for reviewing these de terminations. provide . ample
protection for the Government.
My point is that if the evidence is-relevant and. admissible, that is,
if it meets one of these three standards: It.is either in support of,the
prosecutions theory, in. support of .the defense" theory; 'or .usable' for
cross-examination or impeachment, then it ought to be' turned over. If
it doesn't, it needn't be turned over.
I welcome the approach in section 105 with respect to sanctions when, the Government refuses to turn over. information. A much better job
has been done. there than in the bill. that'has been, introduced as H.R.
4745 and the Senate bill.,I would-urge that 105(b),'(3) be clatified'to
express the committee's .intention, that"-the: Government cannot rely
on any part of the "testimony of .any .witness relating to classified in-
formation which the Government has refused :to ? disclose. 'I think it
is your intention not to let the Government,introduce"the`direct;testi-
mony of the witness, for example, and then not produce usable cross-
examination material.' With respect to section 108, this is not'the'first timetthis House has
confronted the problem of'miving the Government a right to interlock
-tory, pretrial appeal or with the problem of expeditious appeals in
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proceedings in criminal cases or ancillary to criminal cases. Most of
those legislative efforts, in my experience, have not worked in the way
that the House wanted them to work. In the Military Selective Service
Act of 1967 you tried to provide docket preference for Selective Service
cases and nothing came of it. The courts ignored what both Houses of
the Congress said. In 28 U.S.C. 1826, Organized Crime Control and
Safe Streets Act of 1970, you provided for docket preference and a
30-.day time limit on appeals in contempt matters, where the contempt
occurred before a grand jury. The courts.of appeals simply ignored
this. I know of no case in any court of appeals in which the court said,
"We have to get our opinion out in a hurry because the Congress told
us to."
I don't know what to do about that. You can't ask the judges to hold
themselves in contempt for violating the law, but it raises !a problem.
Therefore, I approach these interlocutory appeals warily. If you
want to do this, you cause minimal disruption to the system and create
a substantial disincentive for the abuse of this power if you make sec-
tion 108 a part of existing 18 U.S.C. 3731. That section provides
for the Government's right of appeal in criminal cases generally. Spe-
cifically, and as an example, it provides for interlocutory appeals on
search and seizure matters where the judge has suppressed some evi-
dence. If you integrated your procedure into section 3731, you add,
first, that the Attorney General would have to certify, as in the pre-
trial interlocutory appeal on motions to suppress, that the evidence is
a substantial proof of a fact material in the proceeding, and that the
appeal is not taken for purposes of delay. That would have some disin-
centive for frivolous appeals.
Second, you don't have a time limit under 108 (b) (1) for an appel-
late decision on a pretrial appeal. You just provide the appeal has to
be taken within 10 days. Now, section 3731 requires that a defendant
be released on bail when the Government takes a pretrial appeal after
a motion to suppress. All constitutional speedy trial, and serious
Speedy Trial Act problems aside, the quid pro quo has to be that if
the Government wants a pretrial appeal on one of these issues, it has
to let the defendant out on bail because it is not fair to have an in-
carcerated defendant while the Government exercises rights of
appeal.
Espionage is perhaps the most serious crime to which this bill
would 'apply. This will raise the issue of an espionage defendant being
out on, bail. Justice Brennan, in releasing David Truong, pointed out
the constitutional standards there. I think you will find in a review of
history that espionage defendants tend to make fairly good bail risks
as a matter of fact, for all sorts of reasons. Sometimes in Soviet cases
it is because their Government, guarantees that they are going to be
there, and their Government doesn't want to provoke an international
incident. In other cases, the watchfulness of the FBI it seems to me
is going to be your guarantee.
I am left then with 108 (b) (2) which provides for an interlocutory
appeal during the trial. I don't know what one does if the court of ap-
peals simply doesn't decide within 4 days of the argument, and a
jury is waiting to hear further evidence. Although this is not in my
prepared statement, one might provide that if the court of appeals
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hasn't decided within the 4 days, the trial judge's order shall be final
as against the Government and the trial must proceed. Serious con-
stitutional questions are raised by interrupting a jury trial at all, as
well as serious speedy trial questions if these delays become too cum-
bersome. I would hate to see a delicately worked out mechanism falter
because the courts of appeals, as they historically have, don't do what
the should.
Section 110(a), regarding the Supreme Court's rulemaking au-
thority with respect to protection of documents, is far, far preferable
to the H.R. 4745 procedure and the Senate bill procedure that have
the Chief Justice of the United States making rules. The Supreme
Court itself is an unrepresentative institution. The Chief Justice at
any particular time may be of one political persuasion or another, and
the committee has done well in making the provision of the rules sub-
ject to the same process that applies to the civil rules, criminal rules,
and rules of evidence. In those instances the Supreme Court, as a
deliberative body with advisory committees, makes the determina-
tion. The history of those rules and their operation and practice has
shown the wisdom of providing the full Court with input from the
legal profession.
Mr. Chairman, members of the committee, H.R. 4745 is a bad bill.
I regret very much to say that I can't find anything good to say about
it except where its language happens to track the language of H.R.
4736. H.R. 4736 at least reflects a trial lawyer's judgment and the
hearings that have been held here and is based on the finest traditions
of the deliberative function of the Congress. H.R. 4745 is the Justice
Department's bill and it reflects Justice Department bias. For ex-
ample, under section 4(a) (iv) of H.R. 4745, a protective order can
require security clearances for persons having a need to examine in-
formation, which gives the court control over who is going to, partici-
pate in the defense of a criminal case.
Now, I know that has been done. Some lawyers have been willing
to go. through the clearance process as a predicate to their represent-
ing a client and have had the members of their defense. team go
through the clearance process. I think that interferes with the de-
fendant's right to counsel of his or her choice.
Section 6(c) (2) provides that unless the court makes a specific
written determination that the information is relevant and material
to an element of the offense or a legally cognizable defense and is
otherwise admissible in evidence, the information. may not be dis-
closed or elicited at a pretrial or trial proceeding. That is the standard.
Mr. Chairman, that is unconstitutional. Any Supreme Court you
want to choose would invalidate that in a smooth running minute, and
I mean from the time of John Marshall down to this good day. It ig-
nores the fact that information which isn't relevant to an element of
the offense or to a specifically cognizable defense may nonetheless be
producible by the Government and usable in cross-examination of a
witness for bias or prejudice.
Mr. MCCLORY. I thought we had testimony earlier that in the rape
case we amended the law with regard to the manner of proof and
limited the defendants with regard to-
Mr. TIGAR. Unchastity.
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Mr. MCCLORY. Evidence against the victim, that we were able to
modify by statute the rules of evidence, and that, consequently, we
could do the same thing here by adding the word "material" as well
as relevant and material.
Are we talking about the same thing?
Mr. TIGAR. Congressman McClory, we are talking about the same
kind of issue. Let me try to say what I perceive to be the distinction
between those two cases.
Historically, the defendant's right to cross-examine the prosecutrix
as to prior acts of unchastity in cases involving unconsented sexual
contact has been one of those mutants or spores in the law. Prior un-
chastity is not,. strictly speaking, relevant to the question of whether
on a particular occasion defendant forced his attentions on the pro-
secutrix. The legislation with respect to that subject, therefore, is a
kind of codification of an "other crimes" or "reputation" question.
Mr. MCCLORY. You don't think it is a valid analogy then.
Mr. TrGAx. No, I don't. What we are speaking of here is the ques-
tion, for example, of whether or not a Government witness has on a
prior occasion deliberately falsified records or testimony with respect
to the conduct of 'somebody else. Now, that prior instance of false-
hood may have involved some covert mission on which the witness
was engaged, but that prior willingness to put aside regard for the
truth in favor of doing what one's Government says is the sort of
relevant information which the Supreme Court has said you have a
constitutional right to make inquiry into.
Mr. MCCLORY. Well, when I read Mr. Heymann's statement that
he delivered before the committee, I questioned whether or not we
had the right to add words into a statute which would change the
measure of proof, and yet he spoke very convincingly in support of it.
But you question, I mean, you just think the Supreme Court would
throw that out as unconstitutional.
Mr. TrGAx. The leading cases on the defendant's right to disclosure
of information relating to a witness's propensity to tell the truth, and
a witness's bias and prior record were authored by Chief Justice Bur-
ger himself.
112x MCCLORY. So you think we should just omit. the, words "and
material"?
Mr. TrGAx. I don't think you should pass H.R. 4745 at all, to be
frank.
Mr. MCCLORY. But on the precise point to which you are addressing
yourself, your statement is that adding the words "and material"
makes the law unconstitutional, at least that part of it.
Mr. TIGAR. No. Information may be immaterial to an element of the
offense or a legalliy cognizable defense, but still relevant to the bias
or prejudice of a witness under cross-examination. You would have to
add words to that effect.
I cite in my statement Peter Westen's article in Harvard Law Re-
view, "Confrontation and Compulsory Process" and his two prior ar-
ticles on compulsory process. I don't mean to get everybody reading
Law Review articles, but Professor Westen has done an admirable job
of summarizing the law in those articles as well as arguing his position.
Maybe this Harvard article was published after Mr. Heymann left
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Harvard and came to Washington, so it didn't come across his desk.
But it takes a position that is very different from what he took before
this committee..
This is by no means an exhaustive list, but both the Senate bill and
I-1.R. 4745 amend the Jencks Act. Mr. Halperin was here this morning
and recounted in his prepared testimony some reasons why that is un-
satisfactory. That recounting was based on conversations that he and
I and some other lawyers have been having over the last several months
as we have been thinking about these problems in an effort to be useful
to the committee if called upon, so I won't repeat it.
The cross-examination of Government witnesses is not only a de-
:#endant's sacred rig it, it is the most important part of a criminal trial
as far as I am concerned, and limiting the Jencks Act in this way essen-
tially imposes the trial judge's tactical judgment on the advocate's
tactical judgment. After all, a trial is not strictly a rational process in
which you count up a bunch of facts. The demeanor of the witness, as
the witness is being taken through even prior consistent statements,
inay be relevant to the jury's determination. Little changes in wording
and nuance, between the witness's prior consistent statement and what
the witness says on the stand may be relevant in the hands of a skillful
advocate.
That, it seems to me, is why this section is unwise, and may raise
some constitutional problems to the extent that one regards the Jencks
Act as based on the Jencks decision, which has a constitutional as well
as Federal supervisory power footing.
That is the extent of what I came prepared to say. I would be
pleased to answer any questions that the members of the committee
might have.
Mr. Mui:Frrv. Mr. Tigar, sections 8 ('b) and 8 (c) of the administra-
tion bill would allow the court to waive, when classified information 'is
involved, the "Rule of Completeness," rule 106, and the "Best Evi-
dence Rule," rule 1002.
` Could you describe the practical operation of these rules- and com-
ment on the administration's proposal to change them?
Mr. TIGAR. Yes. The first thing that this does, Mr. Chairman, is to
perpetuate the mystique of the classification stamp. One has a hard
enough time in a criminal case when ordinary citizens see that classi-
fication stamp and don't realize everybody in Government who is any-
body has got one. That is the first problem.
Let me turn to the second problem. I am not saying that I don't trust
my Government, but the kinds of cases in which you are likely to need
these procedures are precisely the ones in which there is great tempta-
tion for the Government counsel, as well as defense counsel, I suppose
to overreach because of the importance of the issues. That is why any
departure from a sort of common law 'adversary, process bothers me.
The rule of completeness is a part of the adversary process. It lets op-
posing counsel insist that a misleading impression not be created. Par-
ticularly 8(b) seems to involve an in camera determination- so that
opposing counsel may not even see what has been deleted. You don't
even have the in camera protection of the adversary process.
,With respect to the waiver of the best evidence rule, Mr. Chairman,
1 .assume you are familiar with that old saw which states there are no
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degrees of secondary evidence. This means that you could have a wit-
ness get up and tell you what was in the document, or photograph, and
then you would try to cross-examine that witness about the contents
of this document or photograph and thereby try to establish what was
in it.
Imagine, Mr. Chairman, if we were to take H.R. 4745, and tear it up.
Throw it away. There are no originals, no xeroxes, and we were to get
Congressman Rodino in here, and you were to conduct his direct exam-
ination of what is in the bill and I was to cross-examine him.: It would
be like three blind men trying to tell you what an elephant looks like.
I don't think any of us in this room would have a very good idea of
what was in there by the time we were done.
That is the practical problem with that. And if you assume that the
Government witness on direct examination who is telling you what is
in the photograph or who is providing the information has a motive
to kind of twist the facts because he works for the Government, or to
color his testimony in a particular way, the problems are enhanced.
Mr. MURPHY. Both bills authorize the court, once it has found
evidence containing classified information to be admissible, to require
deletions or summaries upon Government request if it finds that the de-
fendant's right to a fair trial will not be prejudiced. You indicated op-
position to these provisions in your statement. Doesn't the comment
"if a defendant's right to a fair trial will not be prejudiced" sufficiently
protect the defense interest?
Mr. TIGAR. First, Mr. Chairman, I don"t believe so because I am
opposed in principle to treating classified information differently from
all the other kinds of information that come into evidence in a trial,
such as priest-penitent privilege information, lawyer-client privilege
information, or trade secret information which may involve millions
and millions of dollars. If it is relevant and material to an element of
the offense or to a defense or for cross-examination puiposes, then it
should be turned over. If it is not, it shouldn't. And the principles
shouldn't be any different for classified information. I see no prin-
cipled ground on which to do that.
Second, once again, you are asking the court ex parte and in camera
to summarize information which is going to be used by an advocate,
and over and over and over again I think we have found that trial
judges simply can't perform that function. Trial judges can't put
themselves in the shoes of the advocate in a way that is going to be fair
to a defendant.
This isn't simply my view. The Supreme Court said this in Dennis v.
United States, at 384 U.S. 855 at pages 875 and 876. A number of trial
judges have said this with respect to requests that they review grand
jury testimony and pick out what would be useful for cross-examina-
tion.
The collective experience of lawyers and trial judges and people
that work with this should warn us against any such thing.
At the very least, it seems that if you are going to have such a proce-
dure-and as I say, I am unalterably opposed to it-that you should
change the language as I have indicated to say that the motion shall
not be granted unless the court finds the defendant's right to a fair
trial will not be prejudiced thereby. That, coupled with the right to
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have a hearing, would mitigate the rigors of this section, and would
put the burden of proof where it belongs. That is, if you are going to
meddle with established rules, then the burden ought to be with the
people that want to meddle with it to establish their case.
Mr. MURPHY. Mr. McClory?
Mr. MCCLORY. I certainly can't accept your thesis that national
security, classified, secret information relating to the whole survival
of the Nation can be placed in the same category with privileged infor-
mation or privileged statements such as communication between doc-
tor and patient, lawyer and client and so on as you just now indicated.
It seems to me that there is a very sharp distinction, and a much high-
er importance must be given to classified information which impinges
upon our national security.
Consequently, I think that to try to amend the rules of court or to
embody in the rules that which has been held in court cases would be
entirely unsatisfactory as far as the objectives of the work of this com-
mittee and the objectives of the Justice Department, and for that mat-
ter, the objectives of defendants' interests, as expressed by Mr. Hal-
perin, of the ACLU, are concerned.
Mr. TIGAR. Congressman McClory, the committee can change the
rules of evidence and the rules of criminal procedure in any way it
wants. The mechanism I propose for whatever change you do make
doesn't have anything to do with the contents of the rules.
Mr. MCCLORY. We don't change the rules. The rules of court are not
established by the committee and by the Congress. We sometimes give
legislative sanction to rules of court, but we now don't modify rules
of court by statutory enactment.
Mr. TIGAR. You have the present statutory power, I believe, to enact
amendments to the rules if you decide to do so. The usual procedure is
that you simply approve or disapprove them, but I can think within
the last 2 years of several modifications that you have made to the
rules of evidence and the rules of criminal procedure by legislative
action.
But I think it is true, and I say this with great respect, that we do
disagree, but not to the extent, perhaps, that your interpretation of my
remarks might have suggested.
Yes, national security concerns are more important than lawyer-
client concerns. The Latin maxim is salus reipublicae suprerza lex,
which means the safety of the public is the supreme law. That admoni-
tion was quoted by Learned Hand, a staunch defender of the national
security. In 1950, he wrote that where the rights of a defendant are
concerned, this supreme principle must yield, and indeed, in the Coplon
case he said that it is the test of whether a government is democratic
or not. If at the moment the government is going to prosecute one of
its citizens it is unwilling to take the wraps off whatever secrets may
be relevant to the elements of the offense, or to a defense, or to a pro-
cedural protection such as the disclosure of wiretapping, or to cross-
examination, that the government is not democratic. I cite the Coplon
case in my testimony. I think I cited it last time. It is a wise and pene-
trating discussion. It has been cited with approval by the Supreme
Court, and nobody has ever done better than that at setting out the
relevant considerations.
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So in. sum, if we have on the one hand this important national
security interest, and if we have on the other hand these irrefragable
rights of a criminal defendant, the question isn't so much, "How are
we going to stack them up ?" The question is : "Procedurally, how do
we reach an accommodation?"
I think 4736 tries to do that, and the reason I suggest that we treat
this accommodation in the same way that we treat lawyer-client privi-
lege questions is I want to give trial judges confidence and lawyers
confidence to work and make these procedures work. I want to suggest
analogies to them, as well as not creating a sort of mystique of the
classification stamp.
Mr. MCCLORY. Well, I am encouraged by your support of H.R.
4736, and I was merely questioning your oral statement that you ques-
tion the need for either one of the bills, as I interpret it. I would merely
point out that there is a strong demand for some legislation. There is
a general recognition that some prosecutions have been aborted by a
defendant's claim that only by revealing classified information at a
public trial could he put forth a defense, and consequently the problem
is presented legislatively to find a solution to protecting the national
security interests and at the same time prosecuting wrongdoers, wheth-
er they happen to have been former CIA agents or not.
Mr. TIGAR. To the extent that these bills attempt to establish pro-
cedures to make sure that prosecution decisions are made on the merits
as opposed to for other reasons, they have merit. My suggestion that
you integrate the procedures with the Federal rules is not designed
to deprecate the importance of the bills. It is designed to say that I
have confidence in the ability of trial judges and the legal profession
and the Supreme Court, as well as this House, to work these procedures
out and to suggest needed changes. That really is the purpose of what
I was saying.
Mr. MCCLORY. Do you feel that existing discovery procedures are
adequate to a plaintiff or defendant to determine the scope and extent
of classified information which might?be required either in the prosecu-
tion or the defense?
Mr..TIGAR. Absolutely not, Mr. McClory. I think that by and large
the courts have done fairly well in protecting the Government's in-
terests. Judges as a matter of course hold a pretrial. conference and
issue all sorts of protective orders about how you can't use the infor-
mation. One of the positive features of 4736 is that it imposes a dis-
covery obligation on the Government in classified information cases.
That protects the rights of defendants to an extent that some trial
judges have simply been unwilling to do because they didn't think they
had the authority to do it. I welcome those provisions.
It also insures that the classified information doesn't sit back there
like a landmine ready to blow up the prosecution midway through
because some bureaucrat somewhere decided to protect the prosecuting
attorney from knowing something that he should have known. By
putting that discovery obligation on the Government early, you are
going to make sure that the prosecutor goes around to the agencies to
see what is there and that he doesn't get sandbagged by his own pur-
ported -friends.
Mr. MCCLORY. I don't think you touched upon this, and maybe it is
not an area that you are particularly interested in, but what about the
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provision in II.R.4736 for reporting noriprosecution of cases to the
committees of the House, and Senate intelligence committees?
Mr. TIGAR. I favor that provision, Congressman McClory. It seems
to me that in this field perhaps more than any other, the need for some
control first by administrative regulation and second by the oversight
function of this House over the enormous discretion that the Justice
Department otherwise possesses is terribly important. Depending on
what administration it is, a refusal to prosecute maybe protecting
some big multinational corporation against` its misdeeds, may be pro-
tecting somebody that overthrew a foreign ga exnment, and may be
protecting a spy. It may be protecting a leaker that some department
head doesn't want to see brought to fight, That is why I favor the =
procedure that you have written in.
Mr. MOCLORY. One snore question, if I may, Mr. Chairman, and
that is when the defendant raises the issue that he has to use classified
information in order to properly present his defense, what do you
think about the right of the judge, in the in camera proceeding, not
only deciding whether or not that testimony or that evidence might
be relevant or relevant and material, but likewise, to determine whether
or not it was appropriately classified? Should the judge be authorized
to determine whether or not it has been properly classified?
In one bill, I think it is H.R. 4736, we provide that the Attorney
General will make that decision, and that's it. H.R. 4745, which you
have criticized, leaves that issue up to the judge to decide.
Mr. TIGAR. I think that is irrelevant, Mr. McClory, because as I
understand 4736, if the evidence is relevant and admissible it was
properly classified.
Mr. MCCLORY. In camera.
Mr. TIGAR. Well, if it is relevant, the defendant can use it. If it is not
relevant, he can't use it. That is the determination the trial judge
makes. I don't think the trial judge needs to concern himself with the
question of whether or not it was properly classified in making that,
rulinon evidence.
So-'I don't have any problem with the formulation in 4736. The
Attorney General's certification there is simply a stepping stone to get
the judge to make a pretrial relevancy determination.
Mr. MCCLORY. Thank you.
Thank you, Mr. Chairman..
Mr. MURPHY. Thank you, Mr. McClory.
Mr. Tigar, one question. What about applying the statute to of-
fenses that may have occurred in the recent past where the Justice
Department is considering bringing action and we pass the statute.
When do you think the applicability of the statute should apply?
Mr. TIGAR. I think the statute should apply to all pending cases and
all alleged offenses whenever committed if the prosecutions are here-
,after brought. There is a presumption that procedural legislation
applies retroactively and that substantive legislation applies prospec-
tively. That is a canon of statutory construction, and the fate of adjust-
ments of the statute of limitations, for example, in the criminal code,
so as to apply to offenses to which the statute has not yet run indicates
that retroactive application wouldn't face any constitutional hurdles
in the court.
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I must say that if a bill were passed with which I agreed and I were
going to represent somebody, I would ask that these procedures be
applied, at least the part of them that makes the Government have to
tell me things.
Mr. MCCLORY. May I ask a question?
Mr. MURPHY. Sure.
Mr. MCCLORY. Do you feel that either one of these bills or both
., of these bills are more beneficial to the prosecution or the defendants?
Mr. TIGER. 4745 is probably a more pro-prosecution bill. It is con-
ceived as such. However, I would venture to say that the cumbersome-
ness of the procedures that it establishes, and the multipart analysis
that somebody inside the Justice Department has come with pose
serious problems for both the prosecution and the defense. The more
complex you make things in an effort to cover all possible contin-
gencies, the more things slip through the cracks. I think 4736 is sort
of a lawyer's bill.
Mr. MCCLORY. If we would choose to make the statute applicable
only prospectively, you don't question we could do that?
Mr. TIGAR. I have no question that you could do that as well. Of
course, a trial judge already, under Federal Rule of Criminal Pro-
cedure 17.1, could take a look at this bill and say, well, it. doesn't really
apply, but I am going to issue a pretrial order that has got everything
in 4736 in it, except; of course, the Government's right of appeal, and
impose those procedures.
I suspect, as a matter of fact, that you would find a lot of trial judges
doing that simply because they don't want to make a misstep in han-
dling cases that are as important as these kinds of cases.
Mr. MCCLORY. With respect to the interlocutory appeal, you only
oppose the interlocutory appeal authority with respect to decisions
that are -made during trial. Pretrial you have no problem there?
Mr. TIGAR. I have no problem with that provided it is made a part
of 3731, which requires that the defendant be released. I think you have
serious speedy trial act problems having an incarcerated defendant
sitting around cooling his or her heels while the Government winds
its way up to the Court of Appeals.
Mr. MCCLORY. Thank you, Mr. Chairman.
Mr. MURPHY. Mr. O'Neil.
Mr. O'NEIL. Mr. Tigar, H.R. 4745 proposes a standard of relevance
to which you have earlier referred, at section 6(c) (2).
Mr. TIGAR. Yes, sir.
Mr. O'NEIL. And the Government has described that section as ap-
plying the standard explicated in the Roviaro case. They have also said
that even if 4736 were to become law, they would argue that a Roviaro-
type standard ought to be applied in these kinds of situations, that is
to say, that the Government ought to have at least as much protection
for classified information as the courts have given a Government
informant.
Would you comment on that? I mean, their contention is that this
standard would arguably apply even today.
Mr. TIGAR. I see. That is crackpot. With all due respect to the
Department of Justice, that really is lunacy. The Roviaro case deals
with the question of when the Government must reveal the name of
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an informant who is not a witness at the trial, and the Court held that,
in a decision that has spawned as much appellate litigation as any de-
cision of the Supreme Court that I know about, the disclosure must
be made at least if the informer was a witness to the offense itself.
Roviaro has nothing to do with the admissibility in evidence of a
particular document or other item of evidence, or the testimony of a
witness at trial. At trial, if a witness is proffered by the Government,
that witness may be cross-examined not only as to an element of the offense or a legally cognizable defense. That witness may be cross-
examined as to motive to falsify, bias, prejudice, prior inconsistent
statements, any deal that the witness has made with the Government
and so on. Those standards are explicated in cases that are relevant
to that question, of which Roviaro doesn't really happen to be one,
such as United States v. Giglio, Davis v. Alaska, and Brady V. Mar j-
land. Those cases, decided by the current Supreme Court, have to do
with the, standard of what is admissible in evidence.
So to the extent that Roviaro is being relied upon as a blanket
standard for introduction of evidence, that is simply wrong.
You could have a Roviaro standard with respect to the disclosure
of an informant whose identity or activities may be classified, but that
doesn't have anything to do with disclosing or eliciting at a trial
proceeding.
Mr. O'NEIL. And one other thing. The two bills also differ, and
Mr. McClory has alluded to this several times, at the point at which
the trial court sees either, in the case of 4736, an affidavit or certifica-
tion from the Attorney General as to the classification of material or in
the case of 4745, an explanation, a written explanation of what is
classified and why it is sensitive. They differ in when the trial court
sees this. In 4736 it is provided after the judge makes any determina-
tion of relevance, use or admissibility. In 4745 it is provided con-
temporaneous with any request the Government has for deliberation
by the judge on those issues of admissibility, relevance, et cetera.
What is your opinion concerning the two approaches?
Mr. TIGAR. In every case involving the potential use of classified
information, a pretrial conference is a good idea and there is no con-
stitutional problem with having it in camera. A judge doesn't need an
affidavit early on about why the material is classified or what impor-
tance it has. The fact is that the information is classified and somebody
cares about setting these questions and so a conference should be held.
In 4736, the affidavit applies only in a specific, limited situation
where the judge has ruled on admissibility and where the Govern-
ment wants to substitute a summary or a stipulation. I am opposed
to any such substitution procedure, but at least if you are going to.
have one. the inclusion in 4736 of the affidavit provision makes the
providing of that affidavit a kind of hurdle that the Government has
to jump over, and to that extent fulfills some function that is relevant
to the trial process.
I don't really see why there is an affidavit procedure in 4745. It seems
to me that somebody began to write a bill about why things are classi-
fied, and then someplace in the halls of the Justice Department it
collided with a bill about pretrial procedures, and this is what hap-
pened. . .
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Mr. O'NrIL. Well, the Government contends that it would be help-
ful to them and to the courts, more often to the court, if the court
were fully apprised of all the circumstances of the matter at issue
when it goes to determine such matters as whether or not a substitution
is appropriate, or a stipulation. If it realizes that the only thing at
issue is whether or not, say, the name of an agent; of an intelligence
agent will be included in what is provided to defendant, then the
court can very easily make that kind of determination, and therefore
all these matters ought to all be thrown together, whereas the ap-
proach of 4736 is that the judge doesn't see any certification until he
actually determines beforehand whether it is relevant or admissible.
Mr. TIGAR. Sure. Well, the only purpose of the affidavit in 47 45 is
to scare the hell out of the district judge and to make him or her think
that the information is so important that if, she or he makes a misstep
on the defendant's side as opposed to the prosecution's side irreparable
damage will be caused to the country.
I don't mean to be uncharitable in ascribing motives to the authors
of the bill, but I really don't see any other purpose for putting the
affidavit provision in section 6 (b) of 4745.
Mr. MURPHY. Ira?
Mr. GOLDMAN. I wanted to clarify one thing in talking about the
Roviaro standard "relevant and helpful," or relevant and material."
At one point a little earlier you made a flat statement that if. professed
evidence is- "relevant material," it must be released to the defendant.
If it is not, it doesn't have to be.
Now, did you mean "relevant and material" or did you mean just
"relevant"?
Mr. TIGAR. No; I meant "relevant and material" because I don't have
any problem with the use of both of those standards as I believe them
to be defined by the text writers. Professor Morgan at Harvard used
to say that material meant having some relationship to the case, and
relevant meant tending to prove a particular proposition in the case. I
don't really understand that distinction, but you can use both words if
you want. It doesn't bother me.
The language I have trouble with is what followed : "Relevant and
material to an element of the offense or a legally cognizable defense."
Information can be relevant and material and therefore admissible
under the Federal Rules of Evidence which says that, prima facie, all
relevant evidence is admissible, without being relevant to an element
of the offense or to a legally cognizable defense. It can be relevant to
the state of mind of the witness. It could be relevant to, the witness's
bias, relevant to prejudice, relevant to some deal he or she made with
the Government, and so on. These. are examples of considerations I
mentioned before.
Mr. GOLDMAx. You obviously are aware of the 'background of the
rape evidence rule and as to why there was a call for setting,up such
a rule.
Do you feel that that is intended to protect the victim, or is it prej-
udice to the fact-finding function of the trial?
.
Mr. TmmAR. Prejudice means prejudice to either side of the lawsuit
not to the witness. There is no privilege against being. asked embarrass-
ing questions. Professor Greenleaf so suggested in a treatise in 1870,'
but the suggestion died without anybody ever seconding it.
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The prejudice here is prejudice to the prosecution, that is, asking the
prosecutrix about prior unchastity simply inflames the jury against
her, and therefore against the prosecution and that prejudicial effect
outweighs any relevance that the evidence is thought to have.
Mr. GOLDMAN. Trying to keep the rules as much as they are now,
rather than changing them unless there is a good case for it, and look-
ing at the requirement in 4736 that a bill of particulars be supplied to
a defendant automatically, unrequested, do you feel that that require-
ment is necessary; that if a case involved classified information, it nec-
essarily calls oil the Government to provide a bill of particulars?
Mr. TIGAR. Yes, I do, for two reasons. First, because it is a quid pro
quo. You are requiring the defendant to come forward and give notice
of an intention to use classified information, similar to the alibi de-
fense rule applied against defendants. In the alibi defense notice
statute, Rule 12.2 of the Federal Rules of Criminal Procedure, there
is a quid pro quo. The Government has to come back and say what
they are going to use to rebut it.
Mr. GOLDMAN. Well, this bill would require that also, so a bill of
particulars in addition to the information that is going to be used
to rebut the testimony is necessary?
Mr. TIGAR. That's right.
Mr. GOLDMAN. I mean, it apparently goes farther than the alibi
notice rule.
Mr. TIGAR. Let me go on because, of course, the alibi notice rule bill
of particulars doesn't really matter provided they provide the in-
formation.
The bill. of particulars serves a second function, which is to help
both sides anticipate the need for rulings on classified information.
The bill of particulars circumscribes the Government's proof. It makes
sure that the prosecution can't spring unexpectedly. To the extent it
provides a road map, it is helpful.
I would have thought that the language was unnecessary when in
1966 Federal Rule of Criminal Procedure 7(f) was amended to
change the word "may" to the word "shall" with respect to the pro-
vision of bills of particulars generally. Unfortunately that change
seems to have escaped the notice of a great many sitting district judges.
So I think it is a good idea to remind them of it.
Mr. GOLDMAN. Do you feel that a court can issue a protective order
that prevents an attorney from discussing with his client certain mat-
ters disclosed to him?
Mr. TIGAR. Absolutely not.
Mr. GOLDMAN. Even if the information doesn't relate to a defense
to the charges but rather just to impeachment? Here I am thinking
of an alternative to the Justice Department's proposal in the Jencks
Act. I understand where through discovery the defense counsel ob-
tains information that it might be necessary to discuss it with a client
in order to prepare the defense as to what actually took place, but if
it is just for impeachment, is it necessary to have the client take part
in discussing that sensitive material ?
Mr. TTGAr,. Of course it is, and I think that the effective assistance
time was recognized as far back as the Scottsboro case, Powell v.
A.7,alamn, where counsel were not given sufficient access to the de-
fendants to be able to prepare. That is the constitutional side.
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The practical side is this: I can't try a case in which somebody's ]ib-
erty is at stake in which I, am called upon to cross-examine a witness
with whom the defendant has been intimately involved. I don't mean
in a carnal way, I just mean that they know each other real well, and
there is a dispute about what was done and what was said, and I can't
cross-examine that witness without the active help of the defendant at
every stage. Unfortunately what you are going to have in a number of
these national security cases, because of their nature, is a lot of one-on-
one cases, where it is the defendant's version against somebody else's
version as to just how things got to where they were.
Mr. GOLDIMAN. One final question. The Government has one problem
in espionage cases apparently where one document of; let's say 200
pages, is transmitted to a foreign power, and the Government would
like to only put before the jury a portion of that document. Now, one
possibility is to only charge the defendant with transmittal of 10 pages
of the document. You criticized the Justice Department proposal which
would allow only admission into evidence of part. of the given docu-
ment. Do you think that charging the defendant only with trans-
mittal of part would be a solution, or do you think under the existing
rules of relevance and completeness that the Government would be
able to only have admitted part of a classified document for admission
to the jury?
S
Mr. Tzoju. I would welcome any procedure that would identify the
specific information that the Government thought harmed the national
security. I welcome specificity. I am opposed to interfering with the
rule of completeness which essentially says to the trial judge, "Look,
if it is fair to let the whole thing in, then let the whole thing in." I
don't see why you ought to interfere with the discretion of trial judges
in that regard.
I could easily see a case in which the Government would charge a per-
son with having transmitted only 10 pages when in fact the whole doc-
ument was transmitted, in which the introduction of the rest of the
document could materially weaken the Government's contention that
the national security had been harmed. It is possible to take some
language out of context in such a way as to enhance the seeming impact
of it on the national security. That again is something that has got to
be dealt with on a case-by-case basis: It doesn't seem to me that you
can ask yourself a lot of "what if's" and cabin the trial judge's
discretion.
Mr. GOLDMAN. Thank you.
Mr. MURPHY. Mr. Raimo.
Mr. RAIMO. Thank you, Mr. Chairman.
Mr. Tigar, in your statement you noted that you favor integrating
the provisions of this bill into the Federal rules. Other people have
suggested that we postpone the whole legislative process and allow
these, in effect, changes in the Federal rules to be made pursuant to the
normal procedure in which Federal rules are enacted.
What is your opinion on that?
Mr. TIGAR. I wouldn't be opposed to doing that, but I understand
there's a lot of pressure to get a bill, and that pressure is being heard
from everywhere. I think therefore that any such suggestion is fruit-
less. But I don't think you really have to wait for the advisory commit-
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tee process. This committee has held hearings and it has heard from,
and actively sought out people of all different persuasions and all
'different views. That work is reflected in the various drafts that have
been circulated at various times, so that a deliberative process has-
gone on.
I think you accomplish enough if you integrate them into the rules
and then provide automatically thereby that as problems crop up, as
unanticipated difficulties with this or that provision are demonstrated
to exist, the advising and consulting and amending process could take
,care of it. I think you accomplish enough if you did that.
Mr. RAIMO. Thank you.
Thank you, Mr. Chairman.
Air. MURPHY. Mr. Tigar, thank you again for your cooperation with
thhis committee as you have done in the past, and I hope in the future.
It is always a pleasure to see you.
Mr. TIGAR. Thank you very much, Mr. Chairman, Congressman
McClory. Thank you.
Mr. MURPHY. Our next witness this afternoon is Mr. Michael Schein-
inger. Mr. Scheininger appeared for the defense in both the Berrellez
and Garrity cases, two prosecutions that helped draw attention to the
issue of graymail.
ITe is accompanied in his testimony by Mr. Thomas Guidoboni.
Mr. Scheininger, thank you very much for appearing today, and
gentlemen welcome.
You may proceed.
STATEMENT OF MICHAEL G. SCHEININGER, ESQ., FORMER ASSIS-
TANT U.S. ATTORNEY AND PARTNER, BONNER, THOMPSON,
O'CONNELL & GAYNES, ACCOMPANIED BY THOMAS A. GUIDOBONI,
ESQ., FORMERLY OF THE DISTRICT OF COLUMBIA PUBLIC DE-
FENDER SERVICE AND ASSOCIATE, BONNER, THOMPSON, O'CON-
NELL & GAYNES
Mr. ScHEININGER. Thank you, Mr. Chairman, Mr. MCClory.
Mr. Chairman, we have prepared a statement which we would like to
submit' for the record and particularly in view of Mr. Tigar's testi-
mony, I will only summarize and perhaps read select portions of my
prepared statement.
Mr. MURPiHY. Without objection.
Mr. SOHEININGER. Thank you, sir.
(The prepared statement of Mr. Scheininger follows:]
STATEMENT OF MICHAEL G. SCHEININGER. FORMER ASSISTANT U.S. ATTORNEY,
PARTNER, BONNER, THOMPSON, O'CONNELL & GAYNES
'r. Chairman, I am honored and privileged to appear today, at the Sub-
committee's invitation, to present my views on various bills that have been
introduced to deal with the use of national security information in criminal
trials. Mr. Guidoboni and I speak on our own behalf as members of the bar who
have participated in the defense of criminal cases involving national security.
We know that the various bills now pending in both Houses of Congress are
the result of diligent and fairminded efforts to deal with the complex problems
of criminal justice and national security. But, we believe that these bills over-
react to the actual problems in this area, and that the Adminisration Bill, in.
particular, unjustifiably interferes with the rights of a criminal defendant.
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75
It is deplorable that the sinister term "graymail" has come to be applied to
all efforts to obtain information material to the defense of an accused in a
case involving national security. Such discovery efforts, tightly regulated in
their scope by the existing Rules of Criminal Procedure, are the ethical obliga-
tion of defense counsel and the very essence of our adversery system of justice.
That discovery efforts may actually result in disclosure of classified information
properly reflects the importance we attach to notions of fundamental fairness
in our criminal law. As the Supreme Court stated in United States v. Reynolds,
345 U.S. 1 (1953) :
" (I) t is unconscionable to allow (the government) to undertake prosecution
and then invoke its governmental privileges to deprive the accused of anything
which might be material to his defense."
I do not mean to suggest that serious problems do not exist in the so-called
graymail area. Hearings held before various committees of both Houses of
Congress have chronicled case histories of abuse. But the primary abuses cited
have been the failure of our intelligence agencies to refer matters for prosecu-
tion, the absence of inter-agency procedures to handle classified information,
over-classification, and timidity on the part of the Justice Department in the
face of exaggerated claims that prosecution will result in disclosure of national
security information. None of these abuses resulted from deficiencies in the
Rules of Criminal Procedure.
I do not believe that the Justice Department can cite any case in which prosecu-
tion was thwarted because existing procedures available to the courts were
insufficient to protect national security information. The so-called "ITT-Chile"
case, in which I was one of the counsel of record, is cited erroneously for this
proposition.
That prosecution was initiated and pursued under existing procedures which
authorized the judge 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. A series of such in camera hearings was held, following which
the court ruled that the classified material was relevant and material, and would
be permitted to be used at trial. It was disagreement with this ruling that caused
the Justice Department to seek review by way of a petition for writ of manda-
mus. See Fed. F. App. P. 21. In denying the petition, the United States Court of
Appeals. held that the trial judge had "shown a proper sensitivity to the require-
auents of, national security." In Re United States, U.S. App. D.C. No. 78-2158
(Jam. 26, 1979). Thus, the "ITT-Chile" case, like many other, albeit more suc-
cessful, prosecutions demonstrates that the existing Federal Rules of Criminal
Procedure are adequate to protect the Government's legitimate national security
concerns.
Nonetheless, the Department of Justice has made a case for new legislation
on the basis that because existing procedures are discretionary with each judge,
the Department cannot know in advance that adequate safeguards will always
be imposed. We do agree with the Department of Justice that if mandatory pro-
cedures are enacted, the Department will be better able to. assure our intelligence
agencies that their secrets will be handled in a uniform and predictable manner.
We appreciate also the Departments need to insure, by way of pretrial deter-
mination and appellate review, that irrelevant, immaterial classified informa-
tion is not needlessly disclosed. Accordingly, we do not oppose legislation requir-
ing mandatory notice by the defendant of his intention to disclose such informa-
tion, mandatory pretrial hearings, interlocutory appellate review, and uniform
procedures to safeguard security material once it is disclosed. We believe that
H.R. 4736, introduced by Congressman Murphy, would properly implement these
goals.
What we oppose in each of the Bills is their retreat from the established prin-
ciple that in a criminal case the government's reliance on national security "can-
not deprive the accused of anything which might be material to his defense."
United States v. Reynolds, supra. See Jencks v. United States, 353 U.S. 657,
670-71 (1957) ; United States v. Andolschek, 142 F.2d 503, 506 (2nd Cir. 1944).
By permitting deletions or substitutions in lieu of actual material, these Bills
deprive the defense of its right to determine for itself the most effective use of
that information. We submit that it is contrary to fundamental fairness to single
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76
out one class of defendants-those charged in cases involving national security-
and to erect this barrier. to equal justice.
In addition to this common criticism we have of all of the Bills now pending
before Congress, we also find particular fault with various provisions of H.R.
4745, the Administration Bill. In the interest of brevity, I will address only our
major concerns :
I. PROCEDURES TO OBTAIN PROTECTIVE ORDERS
One of the most dangerous proposals of these Bills is contained in Section 4 (b)
of the Administration Bill. It empowers 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. This provision swal-
lows all of the protections provided to the defense elsewhere in the Bill. For
example, under Section 6(b) of the Administration 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 intelli-
gent manner. There is no legitimate reason why; these same, protections should
not be afforded under Section 4(b).
In addition, we object to Section 4(b)'s limitation of discloseable information
to that which is "necessary to enable the defendant to prepare for trial." Under
Fed. R. Crim. P. 16(a) (1), a defendant is additionally entitled to discover ma-
terial which is intended for use by the government in its case-in-chief at trial,
or which was obtained from or belongs to the defendant. We oppose the attempt
to restrict discovery by the deletion of these additional standards.
The Administration justifies this section by arguing that it provides 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,
Rule 16(d) (1) was specifically intended for use 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 Section 4(b) merely restated Rule 16(d) (1), it would be at worst
superfluous. But a detailed comparison between proposed Section 4(b) and
existing Fed. R. Crim. P. 16(d) (1) reveals that there are indeed, significant and
prejudicial differences. First, Rule 16(d) (1) ?requires that any submission made
for consideration by the judge alone, must be made in writing. Proposed Section
.4(b) contains no such requirement. Second, Rule 16(d) (1) provides that when-
ever the judge grants restricting discovery following an ea parte showing, all
the written submissions shall be preserved for appeal. Section 4(b), by contrast,
mandates such preservation only if relief is granted and the defendant objects.
Thus, under the provisions of Section 4(b), a prosecutor would be free to make
any sort of hyperbolic oral representation to a judge, and there would be no
record available for appellate review. Moreover, even where some written ma-
terials were submitted, they would not be preserved for review unless the de-
fendant 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, proposed Section 4(b), if enacted, would significantly dilute the protec-
tions available to defendants under present Fed R. Crim. P. 16(d) (1).
II. RECIPROCITY
Sections 5 and 6 of the Administration Bill require a defendant to give notice
of his intention to disclose classified information. The defense is also required to
detail its use of the information, and to reveal and justify its legal theory in order
to demonstrate the relationship between the classified information and the defense
case. This complete disclosure must be made at a time when the defendant has
not yet heard the case against him and under a statutory scheme which provides
him with no reciprocal discovery. We strongly object to this lack of any reciproc-
ity in the Administration Bill.
Reciprocity in discovery is constitutionally mandated. As the Supreme Court
stated in Thardius 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 con-
cerning refutation of the very pieces of evidence which he disclosed to the State."
In comparison, reciprocity of two types is provided by Section 107 of the
Murphy Bill. Whenever a defendant is required to disclose particular aspects of
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his defense, he is entitled to a bill of particulars, detailing related aspects of the
prosecution's case. In addition, if the defendant's right to use the classified
information is sustained by the trial court, the defendant is entitled to be advised
of information and witnesses which the government intends to use to rebut the
particular classified information. Reciprocity of this type is constitutionally
compelled, and Section 107 of the Murphy Bill substantially complies with this
requirement. By omitting any reciprocity provisions, the Administration Bill is
constitutionally suspect.
Under Section 6 of the Administration Bill, in order, to obtain an in camera
hearing, the prosecution is required to "demonstrate in an ex parte proceeding
that the disclosure of the information reasonably could be expected to cause
damage to the national security * * *." In our view, this demonstration is totally
unnecessary and is prejudicial 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 the hearing in camera. It is prejudicial,
because the judge is unable to make an intelligent decision without the benefit
of the adversary process and in the face of claims of dire consequences by the
security agency and the Department of Justice.
While we agree that the prosecution should be required to offer proof that
national security is properly invoked, this proof, like any other, must be sub-
ject to the adversary process. Only in that way can the prosecution's representa-
tions be effectively tested so that the court can make an informed decision.
Alderman v. United States, 394 U.S. 165, 182-183 (1969). In the absence of a
provision guaranteeing an adversary proceeding, we oppose this procedure.
We prefer instead the formulations in Section 102 and 103 of the Murphy Bill.
It is provided there that the judge is not to consider the basis for the classifica-
tion until after he determines that the material at issue is producible. The
judge is then permitted to consider the basis for the classification only in deter-
mining what form the disclosure shall take. This scheme properly separates the
two independent decisions which the court must make, and protects against
information relevant only to type and degree of disclosure "spilling over" and
coloring the determination of whether the information, should be disclosed at
all.
We believe that there would be few, if any, occasions when an explanation
of the basis for the classification is required in order for the court to make a
determination of possible alternatives to full disclosure. A designation of which
specific information is classified, and a description of the purpose for which
the defendant intends to use the information will likely be the only factors
which the judge needs to make his decision. In those rare instances where an
explanation of the basis for the classification is necessary, it should be fur-
nished only upon the request of the judge, and only in the form of a written
affidavit, so as to be available for appellate review. See Part II, supra at 6-7.
While written affidavits are required by Section 103(b) of the Murphy Bill, the
Bill unjustifiably encourages the prosecution to submit such statements on its
own initiative.
In sum, while we support the procedures set forth in the Murphy Bill as vast-
ly preferable to those advanced by the Administration, we oppose in principle
the notion that criminal trials may contain any ex parte proceedings. Protective
orders, barring unauthorized disclosure on penalty of contempt would constitute
a sufficient safeguard in all but the rarest of cases.
Finally, we wish to address Section 10 of the Administration Bill, which pro-
poses a revision of. the Jencks Act. Under the present statute, 18 U.S.C. Section
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 witness," 18 U.S.C. Section 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 classified, the classifica-
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4ion is justified, and the matter "is consistent with the witness' testimony," Sec-
tion 10(A). The Murphy Bill contains no such provision.
We object to this attempt by the Administration to tamper with the Jencks
Act. The Act, as presently codified, already meets all of the objectives which
these new Bills seek to accomplish. It is uniformly applicable in all federal
.courts, 18 U.S.C. Section 3500(A). It precludes discovery until after a witness
has testified, thus preventing premature and unnecessary disclosure, 18 U.S.C.
Section 3500(A). It requires the excision of irrelevant matter, 18 U.S.C. Section
3500(c). It permits the prosecutor the option of refusing to produce the dis-
coverable statement, and:it?provides a hierarchy of sanctions' for nondisclosure,
which do not necessarily require the termination of the prosecution, 18 U.S.C.
Section 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
testimony 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 con-
flict without inspecting the reports. A requirement of a showing of conflict
would be clearly incompatible with our 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 Administration's proposed amendment to the Jencks Act is nothing
more than a naked and 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. blissler,
414 F.2d 1293, 1303 (4th Cir. 1969), cert. denied, 397 U.S. 913 (1970). For all of
these reasons, we strongly oppose Section 10 of the Administration Bill.
In conclusion, we urge this Subcommittee not to be overawed by the so-called
graymail problem. Abuses' in this area are not the result of deficiencies in the
Rules of Criminal Procedure. Existing rules have proved adequate to safeguard
national security interests, while at the same time permitting successful pros-
ecutions.
The case for new legislation is that it will impose uniformity and predictability
on existing discretionary procedures. But making notice and pretrial determina-
tions mandatory, and affording the prosecution interlocutory appellate review,
are the only new procedures necessary to meet these objectives.
To go beyond this, to enact more stringent standards which defendants must
meet to gain access to pertinent information, to proliferate ex parte proceed-
ings, and to legislate wholesale exemptions to the Jencks Act, is totally. unwar-
ranted by the scope of the problem. We urge the Congress to exercise restraint
in enacting new legislation which affects the heart of the procedural protections
afforded defendants in our adversary system of justice.
Mr. SHEIK INGER. Mr. Chiirman, in a word, 'having analyzed all the
bills; the Senate bill as well as the two that are pending before this
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:subcommittee, we believe that the bills are, at least in their present
:scope and form, unnecessary. I believe the bills overreact to the so-
-called graymail problem, and I believe the bills might significantly
disadvantage an accused in preparation and presentation of his de-
fense.
I think it is very unfortunate that this term "graymail" has come
to be applied to any efforts to obtain national security information
that is relevant to adefense of an accused. Discovery efforts under the
present rules are tightly regulated in their scope, and I think it is the
ethical obligation of defense counsel, and the very essence of the ad-
versary system, to obtain all relevant facts. That discovery efforts
;may actually result in the disclosure of classified information I think
properly reflects-and I agree with Mr. Tigar-the importance we
.attach to notions of fundamental fairness.
As the Supreme Court stated in United States v. Reynolds : "It is
unconscionable to allow the government to undertake prosecution and
then invoke its governmental privileges to deprive the accused of
:anything which might be material to his defense."
i\' ow, I don't mean to suggest that there aren't serious problems in
the graymail area. This committee, other committees of the Congress,
both Houses of Congress, have chronicled histories of abuse in this
.area, but I think if you review those cases of graymail cited there,
they consist of the following kinds of abuses : Failure on the part of our
intelligence agencies to refer matters for prosecution; absence of inter-
agency procedures to handle classified information; overclassification,
as was discussed this morning; and finally, timidity on the part of the
Department of Justice in the face of some exaggerated claims that
prosecution will result in the disclosure of national security informa-
_. tion. These are the abuses which constitute the phenomena of gray-
mail. Yet, none of these abuses results from deficiencies in the Rules
of Criminal Procedure. So, legislative efforts to amend the rules is, in
my view, misplaced.
I don't believe that the Department of Justice can cite any case, and
-I don't believe they have cited any case, in which prosecution was
-.thwarted because existing procedures available to the courts were in-
sufficient to protect national security information. That is true also of
- the ITT-Chile cases in which I participated, and which I described in
my statement.
The Justice Department's case for this legislation is made on the
basis that because existing procedures are discretionary with each
judge, that the Departments of Justice and Defense and so forth, can't
know in advance that adequate procedures will always be imposed. It
is not a? failsafe system, argues the Department of Justice.
I agree with this limited goal of assuring uniform procedures in all
national security cases. One advantage of mandatory procedures is
that the' Department will be. better able to assure our intelligence
agencies that their secrets will be handed in a uniform and predictable
manner. I agree, too, that mandatory pretrial determinations and inter-
locutory appellate review are -legitimate procedures to insure. that
irrelevant and immaterial classified information is not needlessly dis-
closed. For that reason, I do not -oppose legislation requiring, first,
mandatory notice bar the defendant of his intention to disclose such
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80
information; second,' mandatory pretrial rulings; third, interlocutory
-appellate review; and lastly, uniform procedures to safeguard mate-
rial once it has been disclosed.
These four new procedures are the only ones necessary to protect
the Government's interest in classified information. To go beyond this,
risks prejudicing the defendant's rights. Concerning these four proce-
dures, I think H.R. 4736, Congressman Murphy's !bill, would properly
implement them. I agree, too, with Mr. Tiga.r's view that the notice
and hearing provisions are better integrated into the rules of criminal
procedure, and that with regard to interlocutory appeal, the release
provision of 18 U.S.C. 3731 should apply.
What we oppose, Mr. Chairman, in each of the bills, is their retreat.
from the established principle that in a criminal case the Govern-
ment's reliance on national security, and I quote the Supreme Court,.
"cannot deprive the accused of anything which might be material to
his defense." By permitting deletions or substitutions in lieu of actual
material, these bills deprive the defense of its right to determine for-
itself the most effective use of that information. I submit that it is
contrary to fundamental fairness to single out a class of defendants,.
and by that I mean those charged with cases involving national se-
curity, and erect .this barrier to their use of information that is ma-
terial to their defense.
I would like to turn to-what we regard as perhaps the most dan-
gerous provision of the administration bill, section 4(b). It is labeled'.
in the bill "Protective Orders," and what it does is it empowers a.
judge to alter by substitution or summary, or even deletion, admit-
tedly relevant and material information without affording the defense-
notice or an opportunity to be heard. We submit that this provision
swallows all of the protections embodied elsewhere in the administra-
tion bill.
Under section 6.(b) of the administration bill, deletions, substitu-
tions and summaries are permitted only after. an adversary hearing,.
prior to which the defense is given either a summary of the informa-
tion or the information itself so that the defense may intelligently-
participate in this process. There is no good reason, I submit, Mr..
Chairman, why the same protections embodied in section 6 (b) of the
administration bill should not also be engrafted onto section 4(b) of'
that bill.
In addition, we object to section 4(b)'s limitation of disclosable-
information to that which is necessary to enable the defendant to
prepare for trial. This is only one of three discovery areas authorized
by section 16(a) (1) (C) of the Rules of Criminal Procedure.
That rule permits a defendant to gain access to information, not .
only that is material to a defense, but also, that which comes from
the defendant himself, and that which the Government intends to
introduce into its case in chief. These two are extremely important
provisions which I believe should be incorporated in section 4(b).
Concerning reciprocity, sections 5 and 6 of the administration bill'
require a defendant to give notice of his intention to disclose classified'.
information. Mr. Chairman, it has already been stated, and we con-
cur, reciprocity is constitutionally mandated, and I will simply quote.
from the Supreme Court's statement in Wardius v. Oregon: "It is,
fundamentally unfair to require a defendant to divulge the details.
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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."
We submit that the reciprocity provisions contained in Congress-
man's Murphy's bill appropriately meet this constitutional require-
ment, and that the administration bill, by omitting these provisions,
is constitutionally defective.
Under section 6 of the Administration bill, in order to obtain an in
camera hearing, the prosecution is required to demonstrate in an ex
parte proceeding that the disclosure of information reasonably could
be expected to cause damage to the national security. In our view, that
demonstration is totally unnecessary and prejudicial to the defendant.
It is unnecessary, because the trial judge does not need to know the
basis for security classification simply to determine whether or not to
hold an in camera hearing. It is prejudicial, because the judge is unable
to make an intelligent decision without the benefit of the adversary
process, and in the face of ex parte claims by the Department of Jus-
tice that dire consequences will take place if material is disclosed. The
judge simply can't make an intelligent decision in these circumstances
absent the adversary process.
Ideally, the prosecution should be required to offer proof that na-
tional security is really involved in order to trigger the other provi-
sions of this bill. But this proof, like any other, must be subject to the
adversary process. In the absence of a provision guaranteeing an ad-
versary procedure, we oppose any provision in which the Department
of Justice is permitted to make ex parte representations concerning
the basis for a classification.
We prefer instead the formulations in sections 102 and 103 of the
Murphy bill. It is provided there that the judge is not to consider the
basis for the classification until after he has determined that the ma-
terial at issue is producible. The judge is then permitted to consider
the basis for the classification only in determining what form the dis-
closure shall take. This scheme properly separates two independent
decisions which the court must make and protects against information
relevant only to the type and degree of disclosure, spilling over and
coloring the determination of whether the information should be dis-
closed at all.
Mr. Chairman, we believe that in fact and in actual practice there
would be few occasions when an explanation of the basis of the classifi-
cation is required for the court to make a determination of possible
alternatives to full disclosure. A designation by the Government of
which specific information is classified, and a description of the pur-
pose for which the defendant intends to use the information, will likely
be the only factors that a judge needs to make his decision.
In sum, while we support the ex parte procedures set forth in sec-
tions 102 and 103 of the Murphy bill as vastly preferable to those ad-
vanced by the Administration, we oppose in principle the notion that
a, criminal trial may contain any ex parte proceedings. Protective or-
ders which bar unauthorized disclosure on penalty of contempt would
constitute a sufficient safeguard in all but the rarest of cases.
We oppose, too, the administration bill's Jencks Act provisions.
Much has been said about the Jencks Act provisions before the sub-
committee today, and I won't repeat arguments concerning that. I
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simply call to the committee's attention the statement by Mr. Heymann,
this morning, that in point of fact, the Jencks Act has not really been
a problem for the Department of Justice in the area of graymail and'
national security.
In addition, I point out that the Jencks Act, as presently codified,,
already satisfies the objectives which these new bills seek to accom-
plish. Concerning uniformity, the Jencks Act is obviously applicable
in all Federal courts. Also, it precludes discovery until after a witness
has testified and thus prevents premature and unnecessary disclosure.
It requires excision of irrelevant matters. It permits the prosecutor
the option of refusing to produce the discoverable statement, and it
provides a hierarchy of sanctions for nondisclosure which don't neces-
sarily require the termination of the prosecution.
In sum, we believe that the Jencks Act meets almost all of the inter-
ests of the Department of Justice.
In conclusion, I urge this subcommittee not to be overawed by the-
graymail problem. The past abuses in this area have not resulted from -
deficiencies in the Rules of Criminal Procedure. The existing rules
have proved adequate to safeguard national security interests, while
at the same time permitting many successful prosecutions.
The case that the Department of Justice has made to this subcom-
mittee for new legislation is that, by imposing a nondiscretionary sys-
tem, uniformity and predictability will be enhanced so that people at
Justice and Defense will have a better idea, of what is likely to come-
out in a criminal trial. The only changes in present rules needed to-
accomplish these ends are enactment of the notice, the pretrial hear-
ing, and the interlocutory appellate review provisions of these bills.
These changes alone will satisfy all. of the objectives which the Depart-
ment of Justice seeks. To go beyond that, and to enact more stringent
standards by which a defendant can gain access to pertinent informa-
tion, to proliferate ex parte proceedings as the administration bill
does, to make wholesale exemptions to the Jencks Act as the adminis--
tration does, these provisions are unfair to the defendant and totally
unwarranted by the scope of the problem. We urge the Congress to-
exercise great restraint in this area.
Lastly, I would like to address an issue discussed earlier today:-
What is the proper standard by which a defendant can gain access to-
classified information at various stages of the trial? Mr. Heymann
advocates the standard embodied in section 6 (c) (2) of the administra-
tion bill. But, is the appropriate standard "relevant and material"?"
Or, is the appropriate standard "relevant and helpful"? Should we-
simply say "relevant" as distinguished from "iiiaterial," and if so, how
does all this affect disclosure procedures? -
I want to re-state a point made by Mr. Tigar. These phrases. "rele-
vant and material", "relevant and helpful," are only half of the in-
quiry. You have to see it as a double-barreled inquiry. The question is,
"relevant and material" to what? "Relevant and'helpful" to what?'
It can be relevant and helpful to the preparation of the defense.
Now, that is the discovery standard embodied in rule 16-the "prep-
aration of the defense." Obviously, something that is relevant to the
"preparation of the defense" is aulesser standard, a lesser burden on
the defendant, than demonstrating that information is material and'
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relevant to a "legally cognizable defense," which is more of an in-
trial standard.
So you can have relevant and helpful to the "preparation of a de--
fense"; you can have relevant and helpful to "an element of the of-
fense"; and, as Mr. Tigar stated, you can have relevant and material
or relevant and helpful to impeachment-the issues of bias and prej-
udice. And we might add also, the standard must be capable of being
applied to efforts to obtain information for purposes of motions to
suppress evidence, or to motions to sever counts of an indictment, or-
motions to sever defendants from an indictment.
So, this is a complex issue with greater ramifications than those ad-
dressed by Mr. Heymann. The appropriate inquiry is to look at both
sides of this standard-issue. The Roviaro case, as Mr. Halperin and'
Mr. Tigar agreed, is not appropriately analogous to the issue before'
this" committee. I think that the statement made upon the introduc-
tion of Congressman Murphy's bill, that nothing in these procedures
is intended to change current standards of admissibility in a criminal,
trial is the appropriate legislative history for these bills. And I think
the committee should be very cautious and make it clear that no change,
in standards is anticipated by this bill.
We welcome questions.
Mr. MURPHY. Thank you very much.
Mr. Guidoboni, would you like to comment?
Mr. GUIDOBONI. I really don't have too much to add to the testimony
of Mr. Halperin, Mr. Tigar, and Mr. Scheininger. I agree with them'
on many of these matters.
I would like to make a general comment, however. One thing I'
noticed when Mr. Heymann was testifying this morning, and he made
the point a number of times, that, if you put this provision in you are,
going to have a lot of arguments and a lot of rulings and a lot of
appeals. These comments really demonstrate the difference in our-
approaches.
We have an adversary system of justice in this country, and argu-
ments and rulings and appeals are what the adversary system is all
about. It is both sides advocating and the judge reaching the best
decision. Hopefully the advocates are shedding light and not just heat
on the controversy.
Mr. Heymann seemed disinclined to approach things that way, but
that is the system we have in this country. We don't have an inquisito-
rial system where the magistrate calls people in, takes a deposition and
then makes a decision. We have a totally different situation and I am-
sorry to hear Mr. Heymann say that he felt it was something to
be avoided.
The adversary system is what we are all about. It is what defense
lawyers and prosecutors do every day down in the courts. They argue,
get judges to rule, and then the side that loses may appeal. I think-
that it is just normal to the system. And while other people may think-
that is not the, right system, it certainly is the one we have had. in this
country for 200 years.
Mr. MURPi-TY. Mr. Scheininger, in your statement you suggested that
in the ITT/Chile case, the district court had ruled the disputed infor-
mation to be relevant and admissible and the Government sought
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mandamus to reverse this ruling. The Government, on the other hand,
suggests that it was the district court's refusal to make such a ruling
before trial that was the subject of the mandamus petition.
Could you clarify this discrepancy?
Mr. SCHEININGER. Mr. Chairman, I think that review of the tran-
script in that case, the transcripts which are public, would reveal that
what happened was that the Department of Justice asked the trial
judge, Judge Aubrey Robinson, just 2 days before trial to impose a
series of protective orders and procedures on the defense. The defense
did not object to those procedures. We didn't object to giving notice of
our intention to use certain classified information, and we didn't object
to the trial judge requiring us to make a profier of how that evidence-
which embodied national security secrets-how that evidence would
be material to our defense.
Having heard that proffer, the trial judge ruled that he would
permit the defense to use the national security information in the
defense of Mr. Berellez. At that point, the Department of Justice,
with many hurried phone calls back to Mr. Heymann and many in-
-terruptions in the course of the trial, stated that Judge Robinson's
ruling was, A, erroneous on the merits; and B, that the protective
order that the judge had agreed to issue wasn't sufficient.
I think that the purpose for the Department of Justice's allega-
tion that the protective order was not sufficient was simply to give
them a better vehicle by which to seek mandamus. When that issue
got to the Court of Appeals, the District of Columbia Circuit stated
without qualification that, concerning procedures to protect national
security, Judge Robinson had shown very appropriate sensitivity.
The primary issue concerning which the Department of Justice
sought appellate review, was the substantive ruling on the merits about
whether or not we could use this information in Mr. Berellez's defense.
They didn't agree with Judge Robinson's ruling concerning that issue,
and that is why they sought mandamus.
Of course, that is not an appropriate issue for mandamus. You
-don't go to the court of appeals and interrupt a criminal trial be-
cause you don't like the way the judge ruled on an issue of evidence,
and accordingly the Government's appeal was dismissed.
I might say by way of a footnote, that there are some lessons which
.row out of the Bere77ez case. During the 8-day period the Justice
Denartment was deciding what to do about the iud-ve's unfavorable
-rulings, they sought repeatedly to closet themselves with Judge Robin-
-son to explain, ex parte, the basis for the classification. Under the
proposed administration bill, that would have been their rights. Judge
Robinson at that time stated :
Gentlemen. I don't want to know the basis of the classification. You have told
me that the Attorney General of the United States regards this as classified in-
formation. I'm satisfied. I'm satisfied that it is. The question here is whether.or
not it is relevant, and I have ruled that it is. I don't want to know the parade
-of horribles.
The fudge correctly ,refused to allow his decision on whether this in-
formation was important to the defense, to be colored by the merits
-of the national security claim. That is an issue that the executive de-
partinent of the Government must make; whether or not, in an in-
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85
dividual case, it is in the public's interest to prosecute the defendant.
or to maintain the secret. That is not the judge's prerogative. A Federal
district judge is not equipped to make that decision, and to the extent,
that the administration bill requires him to make that decision, I
think that is bad law.
Mr. Muxrny. Mr. McClory.
Mr. MCCLORY. Well, I would conclude from the statement you have,
just made that anybody who has ever worked for the CIA or the FBI
could successfully thwart his prosecution for virtually any offense-
which he or she committed under, as Mr. Tigar pointed out, a broad
interpretation of the elements of relevance. It can be relevant to the.
defendant's veracity if it is being challenged. Indeed, it can be relevant
to almost any aspect of a defendant's presence in court under one-
analysis. That statement, coupled with your conclusion that we should
not be overawed by the broad subject of graymail, bothers me because-
I am sure that there is a strong public demand on not summarily
vindicating any intelligence agent merely because he or she comes be-
fore the court and says that well, you can't prosecute me because if yow
do I'm going to have to spill classified information and this is going to
hurt the national securi.
I just feel we have a* tremendous responsibility. I feet that there,
may be differences of opinion as to whether the judge should be abl'e&
to weigh the question of classification or whether the, Attorney Gen-
eral's decision is final and not subject to being considered by the court,.
but I am disturbed by your suggestion that the only two things we?
need to pay any attention to are the notice and pretrial determination:
and the interlocutory appellate review.
Mr. SCIIEININGER. Congressman McClory, I think that I did not
mean to suggest to the committee that an individual who was indicted
in a case involving national security is free at his discretion to intro-
duce whatever security secrets he may have in his head. That is not-
the rule of law. That is not the standard now, and it wouldn't be the
standard after these bills, in whatever form, are promulgated.
The standard is that a particular piece of evidence, in order to be-
mentioned by defense counsel in an opening argument, in order to,
be brought out in questioning a witness on the stand, must be relevant
and material to either an element of the offense, a legally cognizable,,
if you will, defense, or an issue of impeachment. If it isn't one of
those, it doesn't come in, and if a defense counsel or witnesss, having
been cautioned not to bring it out, does. bring it out, that counsel or
witness is subject to the judge's powers of contempt.
So our position is not that a defendant can say anything he wants,
and I might add by way of a footnote that in the ITT case, one of
the issues
Mr. MCCLORY. Do you think we already have the mechanism for
handling these problems without legislation?
Mr. SCHEININGER. Absolutely, no question about it, Congressman-
I think that-in other words, the rationale that the
Mr. MCCLORY. I don't think the courts feel that way. Certainly the
prosecution, the Attorney General, doesn't feel that way. Members:
on both sides of the aisle in both Chambers of the Congress feel a tre-
mendous uncertainty in the administration of justice because of the,
presence of this subject that we describe as graymail.
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86
Mr.. SCIIEININGER. Well, I think- that the concern on the part of the
Department of Justice for uniformity, for some vehicle by which to,
test what will come out and what won't come out is a legitimate con-
,cern. That concern has nothing to do with the standards by which a
defendant can defend himself in a criminal proceeding.
Mr. MCCLORY. Well, you have to translate the need for uniformity
into a legislative enactment. We can't tell the various circuits or the
various' district courts how they are going to handle trial cases except
by spelling.it out in legislation.
Mr. GuIDOBONI. If I might respond to that, sir, I think we also
.agree that one thing the bill does accomplish and where you do need
legislation is to make certain of these procedures mandatory, so that
.all of your different districts and circuits are playing by the same
rules. We don't oppose that goal. To the extent the bills accomplish
.that, we agree with them. We think that it is important that if there
are 11 judges on the U.S. District Court here, that in an area as critical
..as national security, all the judges follow the same rules. We are in
favor of that, sir. We are also in favor of procedures which will
.allow the Department of Justice to know what is going to happen
before the trial begins. It will enable the Department of Justice to
predict, and may solve the problem, although I didn't hear about
much of a problem, between the Defense Department and the Depart-
ment of Justice. They can make their assessment early.
We are also in favor of allowing the Justice Department to go up
.to the court of appeals and get, a determination, which is something
-that they complained about in Berellez. Indeed, in my view, they may
have had somewhat of a legitimate complaint there because they were
operating under a mandamus standard which is tougher. Under the
proposed legislation they are not..They just go up on an appeal, and
obtain review.
We favor all of those things, and we believe that the bill introduced
,by Congressman Murphy goes a long way toward accomplishing these
,goals.
We agree with Mr. Tigar that much of this could be done without
an entire revision or a whole new section, but my personal view is that
.that is a matter of legislative choice. I don't think the bottom line,
if you will, is any different. You could make your Federal rules, you
could amend the Government appeals statute, or you could do it this
way. I don't think it is a significant difference although I would prefer
the other way. But that is just a matter of personal choice.
Mr. MCCLORY. Do you think there is an urgency?
Mr. GUIDOBONI. I think so, although I take Mr. Heymann's remarks
this morning as indicating that he was not in a great big hurry.
I think it is like anything else. The Congress should approach it
with deliberative speed. And I am not asking for a delay, simply
that you continue to give it a lot of consideration.
Mr. MCCLORY. Should the law, if enacted, be applicable to pending
?cases?
Mr. SCHEININGER. I think we respectfully disagree_ with Mr. Tigar
-on that point. I think the Supreme Court decisions on retroactivity
are that if the new law affects substantive rights of the ,defendant as
-distinguished from procedural rights-for instance, the order in which
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the evidence is heard is a procedural rule as distinguished from the
:standard by which evidences comes into court, which is a substantive
issue-if it is simply a procedural rule, it can be retroactive. If it
affects substantive rights it must be prospective. We believe that the
administration bill affects substantive rights and thus that bill would
have to be prospective only.
Mr. MCCLORY. Thank you.
Thank you, Mr. Chairman.
Mr. MURPHY. Any counsel questions?
Chief counsel.
Mr. O'NEri. In the light of your comments about the ITT case,
could you,comment on the particularity of the provisions in H.R. 4745
that deal with protective orders that may be ordered by the court?
Mr. Tigar has already commented on one particular provision, I think
the fourth.
Mr. SCHEININGER. Well, I think that I agree with Mr.-I believe
Mr. Halperin said that a shopping list is unnecessary. This is an issue
that is properly within the court's discretion. I think the point Mr.
Tigar made is a very good one. In the ITT cases we, I guess I could
say, subjected ourselves to a national security investigation, and I
believe in the L. Patrick Gray case the attorneys did the same thing.
It is entirely appropriate to feel that that is an intrusion into my
personal affairs which I don't have to make simply to represent a
,defendant in a criminal case in the courts of this country, and I think
that is the point Mr. Tigar made.
Aside from that, I think that the other provisions in the 4(a) house-
keeping section of the administration bill may be appropriate.
Mr. MCCLORY. Mr. Chairman, I am going to have to be excused,
but I do want to say that I think this has been a most fruitful set of
hearings this morning and this afternoon. We have heard from some
,of the legal experts of the country. The brilliance of counsel this after-
noon, counsel at the witness table now, and Mr. Tigar and other wit-
nesses has been tremendously impressive and extremely helpful to us
in our legislative responsibilities.
Mr. MURPHY. Well, I thank my colleague from Illinois for giving
=up his time today. I appreciate it.
Ira, do you have any questions?
Mr'. GOLD-IAN. Yes. Thank you.
Do you think that the rape evidence rule is unconstitutional in that
at doesn't provide any kind of reciprocity?
Mr. SCHLESINGER. I believe it is constitutionally suspect, yes. I be-
lieve the language of Wardius v. Oregon unconditionally requires reci-
procity, and that reciprocity has to be equivalent to the discovery that
has been extracted from a defendant. So what a defendant has to give,
in turn the Government must give, and I think that Congressman,Mur-
phy's bill adequately provides for that.
Mr. GOLDMAN Well, I imagine, then from what you have said, that
as far as Mr. Murphy's bill is concerned, that providing for the Gov-
rernment to give to the defendant information it will use to rebut the
classified information that the defendant has proffered is adequate,
and that from a constitutional standpoint, the bill of particulars in
addition is not required.
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Mr'. SCHLESINGER. No, I think that you may be failing to distinguish
that there are- two separate kinds of reciprocity in the bill, both of
which are required. The bill of particulars requirement is triggered
under Mr. Murphy's bill when a defendant has to identify and give no-
tice: For instance, under the bill, when I say to the judge and the Gov-
ernment that I intend to introduce a piece of what I perceive to be
national security information, the Government then goes into court and
asks the judge to bar me from doing that. I then have to explain why
I believe the information is relevant to my case. Before I do that, the
bill of particulars provision is triggered, and the Government must ex-
plain to me what their specific allegations are concerning that aspect,
of the indictment that I have identified as being relevant to national.
security. That is one kind of reciprocity.
The other kind of reciprocity-where the Government explains what
evidence it will use to rebut the national security information-is for a
different purpose. This reciprocity is triggered only after the judge-
, grees with me that I may properly introduce classified information.
This reciprocity is to compensate for the fact that the defendant has
had to identify not only the specific classified information upon which.
he will rely, but beyond that, explain the whole theory of his defense
as to how it relates to that information. So, in Mr. Murphy's bill there
are two kinds of reciprocity, both of which are required.
Mr. GOLDMAN. Do you interpret the bill of particulars provision as
not applying to the entire indictment but only as to the parts that deal
with classified information?
Mr. SCHEININGER. That is the way I read the bill; yes, sir.
Mr. GOLDMAN. The chairman's bill would provide that after an in-
terlocutory appeal, if the defendant loses on that appeal and then is
convicted, that he would have another opportunity to appeal on the
same issue, if he appealed his conviction.
Certainly, it is helpful for a defense attorney to have two cracks at
a given battle, but do you see any constitutional problems with that
as far as finality?
Mr. GUIDOBONI. If I could respond to that, I. think a large part of
the Justice Department bill is based on a provision in the D.C. Code,
section 23-104, which allows for certain interlocutory appeals by the
prosecution. It is more recent than some of the amendments to the
Federal code.
The rationale which supports permitting the defendant to raise the
issue a second time following conviction is that an in-trial appeal,
supposedly is done in a hurried fashion, you have the right to not
the appellate court can dispense with written briefs, a written opinion,
et cetera. The idea is that the court make a quick call on the issue, up or
down, and the trial proceeds. The reason the defendant is allowed to
raise the issue again is that after full briefing and argument and more
deliberate consideration, which is the way appellate courts generally
do business, you know, the court may see it in a different light. But
at least the trial will go to a conclusion.
For this reason I think it makes good sense to allow the defendant
that second bite of the apple. There is another reason I favor this
provision.
I can tell you from personal experience that if I am involved in a
trial, and all of a sudden the Government says we are going to the
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court of appeals, and we have got to argue in 2 or 3 days. and
the trial is' going on, it is hard to shift gears. It is hard for them and
it is hard for me, and I may not have all the authorities available.
Appellate advocacy is a different kind of art.
So I think that in this sense also it is a good provision to allow two
bites at the apple for the defendant.
I might add that I am familiar with the D.C. Code provision, and
the in-trial part of it has only been used, so far as I know, once or .
twice. The way it was handled was a written summary opinion came
out of the court, basically holding yes or no, and then later the court
issued another more detailed opinion setting forth its rationale.
Mr. GOLDMAN. I have one more question.
Do you know if there have been any challenges to the rape evidenced
rule?
Mr. SCHEININGER. I'm sorry, I don't.
Mr. GUIDOBONT. I might say this. You don't try all that many rape
cases in Federal courts and it is a relatively new provision.
Mr. GOLDMAN. Do you know if there are any plans to take that rule
and put it into the local code in the District of Columbia?
Mr. GUIDOBONI. I served on the D.C. Law Revision Commission
which Congressman Mazzoli shepherded for a while. They have a
different approach there. The Commission proposal simply requires an
.offer of proof and a ruling before introduction of the evidence. It does
not require notice in advance of trial. Although I voted against the
provision because I believe it allows more disclosure than the present
,case law of the District, as I recall it comes up in trial and the judge
-simply hears the evidence outside the presence of the public and makes
-the decision. Now, at that point obviously you don't have the problem
with tipping of your hand. You are right there and you are about to put
-the evidence on and the judge says hold it, let's go clear the courtroom
and we will discuss it.
So it is different from the Federal provision. You don't have the
constitutional problem that we see here, which is advance notice by the
defendant without reciprocity by the Government.
Mr. GOLDMAN. Thank you, Mr. Chairman.
Mr. Munriiy. Mr. Raimo.
Mr. RAIMO. Referring to your comments on the ITT case, do you
think that if either of these bills had been in effect at the time of that
prosecution the case would have gone to trial?
Mr. SCHEININGER. Well, that is complicated. I think that if the inter-
locutory appellate review provision had been in effect, the Department
of Justice would have been able to obtain review by the Court of Ap-
peals which declined review because the mandamus procedure has a
stricter standard. Then the Justice Department then would have had
the feedback it sought from the Court of Appeals. But I don't think
that the case would have proceeded to trial unless the Justice Depart-
ment, in its discretion, decided then to allow the national security
secret to come out, because that is what the trial court had ruled, and
I do not believe the Court of Appeals, even had in considered the
:merits of the appeal, would have reversed that ruling.
Mr. RAIMO. Thank you.
Thank you, Mr. Chairman.
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Dlr. MURPHY. Gentlemen; we appreciate' your attendance here today,,
and.tive think you have-shed somelight?on-what obviously is a problem.
Some people don't' think we need any legislation, others think we do.
I think as the overseas bribery statute and more and more of this
intelligence becomes more important than it has been in the past, we,
will be into this problem, especially with the creation of both the
Senate and the House Select Committees, and we thank you for your-
expertise.
Thank you.
The committee will stand adjourned.
[Whereupon, at 3:30 o'clock p.m., the subcommittee adjourned.}
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H.R. 4736 AND H.R. 4745-GRAY31AIL LEGISLATION
THURSDAY, SEPTEMBER 20, 1979
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:11 a.m. in room
H-405, the Capitol, Hon. Morgan F. Murphy (chairman of the
subcommittee) presiding.
Present: Representatives Murphy (presiding), Mazzoli, Boland
(chairman of the committee), and McClory.
Also present: Michael J. O'Neil, chief counsel; Patrick G. Long,
associate counsel; Bernard Raimo and Ira H. Goldman, counsel, and
Herbert Romerstein, professional staff member.
Mr. MURPHY. Good morning, ladies and gentlemen.
The Subcommittee on Legislation of the Permanent Select Commit-
tee on Intelligence will come to order.
Today marks the second and final phase of this subcommittee's hear-
ings on proposed graymail legislation.
Graymail is the term used to describe the difficult, choice facing the
Government-when it contemplates, seeking an indictment or continuing
the prosecution of a case in which national security information may
be revealed.
The two bills before the subcommittee, H.R. 4736 and H.R. 4745,
would require a criminal defendant to notify the court and the Govern-
ment before trial of any intent to disclose classified information during
trial.
The Government could then obtain, pursuant to an in camera pro-
ceeding, a pretrial ruling on the relevance and admissibility of the
classified information.
Testifying this morning will be several members of the defense bar.
The first witness will be Philip Lacovara, former Assistant Solicitor
General and later Assistant Watergate Prosecutor. Mr. Lacovara is
now a member of the firm of Hughes, Hubbard and Reed. He is mak-
ing his second appearance before the subcommittee on this topic. It can
certainly be said that his previous testimony and advice have helped
shape, in no small part, the legislation we consider here today.
Air. BOLAND. We welcome Mr. Lacovara. He certainly has had ex-
perience in these areas. His testimony, along with that of the other
witnesses will be important in the final resolution of this matter by this
committee.
We welcome you.
(91)
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STATEMENT OF PHILIP LACOVARA, ESQ., HUGHES, HUBBARD &
REED, FORMER ASSISTANT SOLICITOR GENERAL AND FORMER
ASSISTANT WATERGATE PROSECUTOR
Mr. LACOVARA. Thank you, Mr. Chairman. I appreciate your kind
rem arks.
Before beginning to summarize the lengthy statement that I have
filed with the subcommittee, perhaps I should say something about
the perspective that I have tried to bring, to bear on these problems.
I have served in the Government as a prosecutor, and I have had
some familiarity from that vantage point with the graymail problem.
Since leaving Government service, I have wound up on the defense
side of several cases, and I am also the chairman of the board of
trustees of the Public Defender Service of the District of Columbia,
.and one of our former chief staff members was a witness before this
subcommittee at its prior session on this subject, Tom Guidoboni.
What I have tried to do in mny submissions to the subcommittee, both
last time and in this statement, is to approach this not from the vantage'
point of a prosecutor, not fromm the vantage point of a defense lawyer
trying to load the process to tilt in either direction, but to come up with
some suggestions that I think would make sense in terms of recon-
ciling legitimate interests on both sides, the interests of the people of
the United States in pursuing what seem to be serious allegations of
Federal criminal violations, with the competing interest of the defense
in being able to conduct an adequate and fair defense against these
charges.
The two bills that are before the subcommittee this morning seem
to me to be quite worthwhile efforts to reconcile those two interests.
As I explain in some detail in my statements, I believe each bill has
some features that I would recommend that the subcommittee change.
I think that, in terms of structure, as a basic drafting underpinning
for further changes, I would rather see the subcommittee work with
the administration bill, H.R. 4745, making in it, however, many of
the modifications that would bring it more in line with the subcom-
mittee's draft, H.R. 4736. There are some features of both bills that I
think should be changed, either by deletion. or by addition, and my
statement goes into some considerable detail about both broad issues
and what I would consider technical drafting clarifications.
Just by way of summary, Mr. Chairman, I think it is a worth-
while
Mr. MLmrrr-ry. I would like to make a motion at this time, if You are
going to summarize it, Mr. Lacovara, that we receive the full state-
ment in the record.
Are there any objections by any members?
It is so ordered that your full statement be incorporated in the
record.
[The prepared statement of Mr. Lacovara follows:]
STATEMENT OF PHILIP A. TACOVARA, PARTNER. HUGHES, HUBBARD &.REED, WASH-
INGTON, D.C.. FORMERLY COUNSEL TO THE WATERGATE SPECIAL PROSECUTOR. AND.
DEPUTY SOLICITOR GENERAL OF THE UNITED STATES
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 repre-
sents a substantial and worthwhile effort to resolve the "disclose or dismiss"
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dilemma that has frustrated otherwise warranted criminal investigations and
has aborted important criminal prosecutions.
These bills are the response to hearings held last year in the Subcommittee ion
Secrecy and Disclosure of the Senate Select Committee on Intelligence and
earlier this year by this Subcommittee. One major focus on those inquiries was,
the so-called "gray mail" problem. The 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 compro-
mising its information and the resulting tensions between the intelligence
agencies and the Justice Department have led federal authorities to abandon
seemingly justified criminal investigations 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 rela-
tively small number of cases, they tend to be cases of unusual public importance ;
that greater flexibility on the part of the intelligence agencies, greater determina-
tion among federal prosecutors, and greater imagination by trial judges could
reduce the scope of the problem ; and that legislative prescription of the new
procedures and alternatives could usefully accommodate the public interest
in vigorous criminal investigation and enforcement with the constitutional right
to a fair trial.
Rather than repeat my earlier testimony, I am instead annexing (as Ap-
pendix 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 statements re-
flect 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 De-
partment of Justice bill, H.R. 4745. I disagree with some of its features, how-
ever, including its failure to include some provisions that are included in the-
subcommittee bill, H.R. 4736.
GENERAL OVERVIEW : THE FUBPOSE AND THE PROCESS
The theme of both bills is that the public interest in legitimate law enforce-,
merit 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 wishes to obtain in discovery or proposes to
use in his defense. 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 expressing a clear congressional judgment that the federal courts
must give these issues careful and methodical treatment.in accordance with a
clearly defined process.
PREFERABLE FORMAT: AMENDMENTS'TO FEDERAL RULES
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 construction of what would other-?
wise 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 peculiarly notorious or controversial. It is far better, in my judgment,
to integrate these proposed procedures into the general body of federal proce-
dural and evidentiary jurisprudence.
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. 2076. That oversight would permit the judiciary, after due deliberation,,
to fashion modifications that may be necessary over time to fine-tune the legisla-
tion. 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 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 classified 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 section
102( a) (1) of H.R. 4736; section (5) (a) of H.R. 4745.
As a result, the bills would not add any further restrictions, beyond those al-
ready 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 independetly 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, regn-'
lations, 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 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. Re-
strictions of that sort would not be warranted. The bills should specify, how-
ever,. that the restrictions apply not only to. the' defendant personally but also..
to his counsel. Thus, for example. section 102(a) (1) of the Committee bill should'
be modified to provide that "neither .the'defendent 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 -section
162(b)-(f),>
ROLE OF, THE ATTORNEY GENERAL : LIMITED DELEGATION
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
criminal cases under the Supreme Court's wiretapping-authorization decisions.
a. few years ago,' section 112'of the subcommittee bill provides that=the Attorney
United States v..Giordano,416 U.S.'505 (1974) Unite'S Staten V. Chavez, 416 U.S. 562'
(1.9:74)..? ' }s
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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 pro-
cedures; reserving to the presidential 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 procedures and certifications that the subcommittee bill would place under
the immediate supervision of the Attorney General or his delegate are sufficiently
important and peremptory to justify the requirement of personal involvement
at least by the Assistant Attorney General. Although it is a bit more cumber-
some 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 Wash-
ington.
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 months ago in
Gannett Company v. DePasgnale, - 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
suppression hearing in order to avoid prejudicial publicity, there has been con-
siderable furor about the dangers of "secret" criminal proceedings. The Sixth
Amendment expressly guarantees 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 evidence and not with the actual trial of 'guilt'or innocence. Secondly, the
Court emphasized the importance of the defendant's own consent to the in camera
proceeding.
The question raised by Gannett is whether Congress may constitutionally
establish a requirement that, when requested by the government, a court must
conduct in camera pretrial or ancillary procedures concerning the scope of dis-
covery or the admissibility of evidence. Although the matter is not wholly free of
doubt, it is my judgment that the Constitution permits Congress to require that
proceedings of that type take place in camera when there is an important govern-
mental interest in doing so. The preservation of classified information against
needless disclosure surely constitutes a legitimate governmental interest in the
conduct of in camera proceedings. See United States v. Nixon. 418 U.S. 6803,
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 with-
out 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'ap-
proved the use of in camera proceedings in handling classified 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 secrets. United States v. Nixon, supra, 418 U.S. at 713-16 & n.21. Last'ye'ar;
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 victim's 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 Gen'
eral'`so requests.. See sections 102(a) (2) (B), 192(b)(2) (B), 103(a),,109(b)."By
contrast, the Justice Department bill requires that it make a preliminary showing
that information. involved is properly. classified. See section. 6(b). It is.interest-
ing, 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'
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submission concerning the sensitivity 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 argu-
ments 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
government 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 permits ex parte proceedings,
that is, an in camera proceeding in which only one party-the government-is
fully participating. Most of the in camera proceedings would involve the de-
fendant 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 section 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 infor-
mation without.actually seeing the information itself. I know that some wit-
nesses 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 infor-
mation by the defendant and his counsel. There is abundant legislative and judi-
cial support upholding the ability of trial judges to make analogous determina-
tions ex parte and the propriety of establishing that procedure in selected set-
tings. Congress expressly overruled the Jencks decision in the so-called Jencks
Act, 18 U.S.C. 3500. Under section 3500(c), the trial court is now required to
examine a prior written statement by the government witness in camera-and
ex parte-to see whether the government is correct in arguing that some or all
of the prior statement is irrelevant to the witnesses' testimony. If so, the state-
ment 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 Alder-
man 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 illegally 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 co 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
,States; 394 U.S. .310, 314 (1969) (Stewart, J., concurring) ; Taglianetti v. United
States,394U.S.316,317-18 (1969) '(percuriam).
There are other Instances in which the judge is` called upon to make similar
determinations without providing the defendant direct access to the material yin
issue. For example, under'Title III of the 1968 wiretapping legislation, 18 U.S.C.
section, 2518(10),(a), a trial judge passing upon a suppression motion has the dis-
cretion 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
admissibility, 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 Information Act "contem-
plates that thefcoiirts will resolve fundamental issues .in contested cases on' the,
basis: of an! in camera [and ex parte] examination of 'the relevant documents.
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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 informa-
tion. is at issue. E.g., Environmental 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 section 102(e) seems permissible. For similar reasons,
so does section 109(b). Section 109(b) authorizes 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 em parte submissions for these
purposes, the approach taken by the Justice Department bill in sections 4(b),
6(b), and 6(c) (1) seems to me to be preferable. The Justice Department ap-
proach is more comprehensive and it also enumerates in detail several alternative
actions that the trial judge should consider taking.
VALIDITY OF SUBSTITUTES
Some witnesses have questioned the constitutionality and fairness of per-
mitting 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 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 tilted a bit further in the defendant's direction.
Under section 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 section 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." Section 103(a). Compare
section 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.
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 equiva-
lent measure of evidentiary support to which the defense is legitimately entitled.
The constitutionality of this process seems to me beyond question. The Su-
preme Court has already suggested in the informer-privilege cases that some
"sanctions" short of outright dismissal may be appropriate where the govern-
ment elects to withhold. the identity of an informant. See Appendix B, p. 11. Under
the Jencks Act, 18 U.S.C. 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. Procedure, 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."
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. 6001-05, on the
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ground that its prohibition against the use of comp elled'testilnony in a crinlitial
case offers a reluctant witness substantially the same protection as that guar-
anteed 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 provisions like sec-
tions 4 (a) and (b) and 6(c) of the Justice Department bill and sections 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 sufficient 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 sections 4(b) (1) and 6(c)
(3) ), or unless its non-disclosure would "prejudice" the defendant's right to a fair
trial, (as in section 103(a) of the subcommittee bill). I suggest, instead, that the
use of alternatives be made permissible "unless the court finds that no alternative
will provide 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."
RECIPROCITY OF PRETRIAL DISCLOSURE
Section 107 of the subcommittee bill contains a provision for reciprocal dis-
closure by the government whenever the defendant has had to specify the evi-
dence 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 Depart-
ment bill contains no similar guarantee. Indeed, Assistant Attorney General
Hermann 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 (1.973) with Wil-
liams v. Florida, 399 U.S. 78 (1979). Each of these two bills requires the defend-
ant 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
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 government's interest. The rec-
iprocity 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 estab-
lislhed by these bills to safeguard against improvident disclosure of specific data.
JENCKS ACT REVISION
Witnesses have sharply divided over the desirability of section 10 of the Justice
,Department bill, the proposal to amend the Jencks Act to insert a new section
.3500(c). The new provision would permit the court to excise from the prior
written statement of government witnesses not only irrelevant classified mate-
rial-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 impeach-
ing 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.
2 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 suport of an alibi defense. Rule 412 of the Federal Rules of Evidence, added by
Congress in. 1978. however, requires the defendant in a rapae 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 pretrial 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 reciprocty. but that omission is meaningless.
The Rule does not comnel the defendant to disclose anything about the defense, even the
identity of his expert witnesses, and thus reciprocity is not an apt concept.
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I have little doubt that, as?a_constitutional matter, Congress may adopt- the
amendment sought by the Department of Justice. Marginal utility in cross exami-
nation is not constitutionally protected under either the Due Process :Clause of
-the Fifth Amendment or the Compulsory Process Clause of the Sixth Amend-
ment. Congress has adopted or approved a number of evidentiary rules, includ-
ing 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, provision of the two bills. Those provisions would allow the
court 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 exam-
ining the prior statement, that the prior statement is "fully consistent" with the
witness' testimony.
Title II of the subcommittee bill would require the Attorney General to promul-
gate 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 commit
tees of both Houses.
I question the utility of the requirement in section 201 of H.R. 4736 that the
.Attorney General issue guidelines governing the exercise of prosecutorial dis-
cretion in these cases. In doing so, I know that I am out of step not only with the
assumption matte in the subcommittee draft but also with the recent recommen-
-elation of the House Government Operations Committee, which recommended that
..the existing Justice Department memorandum laying out the process for making
,these decisions should be replaced by more formal, permanent regulations.' Never-
theless, I suggest that an attempt to enumerate 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 section 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
Intelligence 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 access to intelligence files in mak-
ing the decision that properly belongs to him. I submit, however, that it would
? be worthwhile for Congress to make the policy determination that the Attorney
General is entitled to unrestricted access to national security information in con-
nection with his functions and that, subject to presidential control, he is ulti-
mately responsible for deciding whether the public interest in prosecuting a fed-
eral crime outweighs the public interest in protecting a state secret. That type
of 'statutory, provision seems to me more. useful than section 201 of the subeom-
,mittee bill.
Section 202 .requires the preparation of detailed memoranda explaining de-
cisions not to prosecute and demands that the Justice Department routinely for-
ward 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 "prosecution memo-
randum" in sensitive cases of this sort. Hence, the record will be there fox ex-
amination, when necessary. It is also certain, though, that few cases are likely
See House Committee on Government Operations, "Justice Department Handling of
Cases Involving Classified Data and Claims of National Security," H. Rept.'No. '9-280
,
'96th Congress, 1st session at 22 (1979).
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to' involve seriously questionable judgments that will deserve congressional at-
tention.
Accordingly, it seems to me that due respect for the separation of powers and
for the independence of the Executive's prosecution function counsels in favor
of minimal intrusion into Justice Department deliberations and files. Here too,
a compromise solution seems best designed to reconcile legitimate but conflicting
interests. At most, legislation 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 investigation. 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.
POTPOURRI
Several technical or structural questions may also merit comment. For instance, ?
earlier witnesses have suggested that the procedure for obtaining a protective
order under section 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 maintained under seal for
possible appellate review.
Both section 102(f) of the subcommittee bill and section 8(d) of the Justice
Department bill contain provisions that I find quite ambiguous. In providing the
government with an opportunity to 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 information. The provisions appear to
make the prevention of disclosure 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 interlocutory appeals from
disclosure orders that may threaten its ability to proceed with a case. An inter-
locutory appeal by the government has ample statutory precedent in other situa-
tions, and I support this approach. Certain ambiguities, however, should be clan-
fled.
Both bills provide for the trial court to defer or adjourn the trial until the ap-
peal is "decided" or "resolved." See section 108(b) (1), H.R. 4736; section 7(b),
H.R. 4745. Lest there be any uncertainty that might magnify the delay and inter-
fere with the interest of both the public and the accused in a speedy trial,-legis-
lation 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 cir-
cumstances 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 discbvery. That formulation seems
unintentionally too sweeping. What I believe the subcommittee intended is to
restrict the disclosure of classified information that is made available to the
defendant in discovery except to the extent that disclosure is otherwise author-
ized in connection with the proceedings and in accordance with the statutory
screening procedures. A change that make that intent clear would be useful.
Finally section 8 of the Justice Department bill would modify several provisions
of the Federal Rules of Evidence concerning the admissibility of duplicates, sum-
maries, or excerpts of writings. These changes are within the power of Congress
and leave sufficient discretion to the trial judge to avoid unfairness to the
defendant.
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CONCLUSION
The bills pending before the Subcommittee invite it to confront boldly a num-
ber 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.
APPENDIX A
STATEMENT OF PHILIP A. LACOVARA, PARTNER, HUGHES, HUBBARD & REED,
WASHINGTON, D.C.
"Protection and Use of National Security Information"
Mr. Chairman, 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 pro-
posals 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 IN THE
COURTROOM
In considering the protection that should be afforded to 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 extralegal 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.
A. Protecting what against whom?
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 dis-
semination, 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
that should be subject to a substantive restriction against disclosure.
The Subcommittee is well aware of 'the array of objections to the current
espionage statutes, which are quite cloudy in defining the contours of the infor-
mation that is to be protected. In addition, those statutes are utterly ill-suited to
the phenomenon of the official "leak." Although the selective leaking of the
otherwise secret government information 'is as old as our Republic-and is prop-
ably 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 arguably subject to some govern-
mental privilege, is that government 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 classification.' I suggest that the balance should
1 I acknowledge that my first-hand experience predates 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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be legislatively tipped in the other direction-much as the Freedom of Informa-
tion.. Act. now does-and the presumption ought to be that information, is dis-
closable unless there is an articulable basis for shielding it.
? I? would urge the Subcommittee, if it decides to fashion legislation on this
subject, to propose a narrow formulation, 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 secret. At the drafting stage, the burden
of persuasion should be placed on those experts to produce real instances and
substantial 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 solution to a complex ?
and important problem. This country, however, 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 episodes are now regarded
with shame, and must not be repeated. National security is, of course, a legiti-
mate 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 repeating that the Preamble to the Con-
stitution 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 gov-
ernmental claims to secrecy, and I believe that they should be given the nar-
rowest possible cabin. The First Amendment reflects the two underlying postu-
lates of our democratic society : that the people-not the government-are
ultimately responsible for the course of their society, and that, in order to make
informed choices, the people must have adequate current access to pertinent
information. As St. John put it in a somewhat eschatological context : "And
ye shall know the truth, and the truth shall make you free." 3
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 tech-
nique 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 govern-
wants to convey. At the other end of the spectrum, a leak may come from
ment
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 he somewhat
more embracing in its definition of the categories of national security informa-
tion.
I have only one suggestion to make about that definition. Many of the rea-
sons for public disclosure of government information apply to policy-related in-
formation, 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 sim-
ilarly be disclosable. This kind of 'distinction might also put into separate cat-
egories the disclosure of the general existence of intelligence abroad, on the
one hand, and disclosure of the names of active intelligence operatives or
z Uniterd States V. Nixon, 418 U.S. 6S3 (1974).
St. John 9 :32.
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ment 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, how-
ever, denied this petition on January 26, 1978.10 The government's briefs in the
In the ITT perjury case,' the district judge initially granted a protective order
prohibiting the defendant or his lawyer from disclosing, without prior court ap-
proval, 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 govern-
The Subcommittee is no doubt aware that the Department of Justice has re-
cently 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 accused while at the same time protecting the government's legiti-
mate interests in national security information. Useful protective orders were
entered in the CIA spy satellite espionage trial,' in the FBI break-in case,' and
In a statement I submitted in March 1978 to the Subcommittee 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' I shall not repeat that testimony. Instead, I am submitting
a copy of my prepared 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 Justice 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
The other major facet of the problem before the Subcommittee 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 information in the
course of a proceeding in order to prove a material fact. The other, sometimes
called "graymail," involves the threat or demand by the other party to the liti-
gation-often, but not always, a defendant in a criminal case-to have national
security information disclosed in the course of the proceedings. In either situ-
ation, the government may be confronted with the "disclose or dismiss" dilemma
? in which the government must either compromise national security by dis-
B. To proceed, or not to proceedf That is the question
sources in particular countries, on the other. The distinction 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.
103
I "The Use of Classified Information in Litigation." Hearings before Senate Select Com-
mittee on Intelligence, Subcommittee on Secrecy and Disclosure, 95th Congress, 2d session
53-81 (1978).
5 "National Security Secrets and the Administration of Justice," Report of Senate Select
Committee on Intelligence, Subcommittee on Secrecy and Disclosure, 95th Congress, 2d
session 2(,-32 (1978).
0 United States v. Jiampiles (N.D. Ind. Crim. No. HCR 78-77).
7-United States v. Gray, et al. (D.D.C. Crim. No. 78-t,00179).
'Unite l.States V. Humphrey, et al. (D.D. Va. Crim. No. 78-25-A.).
B United States v. Berrellez (D.D.C. Crim.' No. 7800120).
107n Re United States (D.C. Cir. No. 7C-2158). The Court of Appeals held that the pro=
tective order was not properly reviewable by the extraordinary mandamus procedure..
One of the defendants in the FBI break-in case (United States v. Gray) has recently
petitioned the Court of Appeals for similar mandamus review of the protective order in
that case.
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104
court of appeals provide an excellent compilation of the case law tsuppoitink -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 dissemi-
station of classified information obtained in discovery, but there are also a num.
tier 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." 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 care-
ful 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 primary authority within the Executive Branch to resolve the disclose-
er-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 government's possession that he considers necessary
to the discharge of his responsibilities. He should be required, however, to con
stilt 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'2
The Federal Rules of Civil Procedure and Criminal Procedure 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
be established and screening of the material can be conducted. Building on the
existing statutory provisions for government appeals from suppression orders."
Congress should allow the government to appeal from a disclosure order upon
certification 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.na-
tional 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 camera15 To the extent that the constitutional right to a public
trial may give either the defendant or the public the right to open proceedings,'
it might be possible 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 govern-
ment 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 is 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.
n Indeed, the Court of Appeals' recent refusal to overturn by mandamus the district
court's denial of a further protective order in Berrellez thereby effectively denying the gov-
ernment the opportunity to appeal the district court's decision-underscores the need for
congressional action laying down reasonably clear guidelines for district courts and liti-
gants in this area.
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 Testi-
mony And The Protection Of Atomic Secrets, 1978 American Historical Review, 388.
13 IS U.S.C. 3731 ; D.C. Code Sections 11721(a) (3) & 23-104.
14 The need for a statutory appeal process for such orders-and the inadequacy of -man-,
e8amus as a means of appellate review in these cases-is highlighted by the District of
Columbia Circuit's denial of the Government's mandamus petition in Berrellez. See note
20. supra. -
15 See Hearings, supra note 4, at 57-58.
"'The Supreme Court now, has before it the constitutionality of a court order excluding
the public and the press from certain portions of a criminal proceeding, where there was
a concern 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..1330). For quite"differ-
eat views of this problem, compare Gannett Co., Inc. v., DePasquale, 43 N.Y. 2d 370, 401
N.Y.S'. 2d 756. 372 N.E. 2d 544 (1978). cert. granted, U.S.L.W. 3079 (U.S. May 1, ;1978)
4Ne 77-1301), with United States v. Cianfrani, 573 F.2d -835 (3d Cir. 1978).
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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" in-
struction as a parallel, and could authorize 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 in-
struction, 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 dis-
covery 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 Fed-
eral Rules of Evidence, which permits relevant evidence to be excluded if its
probative value is "substantially 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 consideration S.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 in mind, there seems to be ample justifica-
tion for this Subcommittee to develop a comprehensive legislative package that
will deal with the issues I have addressed.
APPENDIX B
'STATE'MENT OF PHILIP A. LACOVARA, PARTNER, HUGHES HUBBARD & REED,
WASHINGTON, D.C.
"Investigating and Prosecuting Federal, Offenses When National Security
Information May Be Involved"
Z am.appearing this morning at
the Subcommittee's invitation to offer my views
on the problems that are encountered.in investigating and prosecuting criminal
cases involving national security information. In commenting on these problems,
f,dray on my experience in the Department of Justice, where I served as Deputy_
Sglicitor, 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 psychia-
trist, touched upon these problems..
,.,,I.. RELATIONSHIP BETWEEN NATIONAL, SECURITY AND PROSECUTORIAL DISCRETION
The prosecution of a federal offense invariably involves a continniing series.of,
discretionary judgments, beginning with the decision whether to, open an investi-
ga'tion 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. T 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 df
protecting national security is certainly legitimate. Accordingly,, it 'is no more
-abjectionable'for any federal prosecutor, ranging from an Assistant United. States.
AbLOrney to the Aftorney General, to' weigh genuine national security interests;
-"':Compare Davi8 v. Ala8ka, 415 U.S..308 (1974).
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than it is for a prosecutor to evaluate the countless other variables that inform
the exercise of prosecutorial 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. ti
. The second type of impact can come from the disclosure of classified infor-
mation 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 investigation of an alleged offense was deemed pointless.
2. EXISTENCE OF ALTERNATIVES TO "DISCLOSE-on-DISMISS" DILEMAIA
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 Depart-
ment of Justice proceeds with a little sensitivity and a modicum of imagination,
the involvement of some national security component need not erect an impass-
able roadblock to the pursuit of a federal offense that otherwise merits investi-
gation and prosecution. Before any final judgment is made that national security
imperatives outweigh the public interest in enforcing the criminal law, a num-
ber of alternatives 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 dilemma. I have the sense that the government may be aborting
cases prematurely or unnecessarily because of a failure to press the alterna-
tives 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 congressional 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 disclosure
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.
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 re-
ceiving 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 congres-
sional 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 Con-
gre?s develops tighter legal restrictions on our intelligence. agencies, cases pre-
senting this dilemma are likely to occur with' increasing frequency.
}Bused upon my. experience, the dilemma is often a false one, because on close
eza'nrilration much`orniost classified information is overclassified.' Thus; its dis-
closure at a trial, if necessary, would not present truly grave risks of jeopardiz-
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107
ing our military security. The intelligence community, resolutely opposes any
.public disclosure of classified information, and that attitude is understandable
because 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
consequences that would allegedly 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 otner-
wise 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 alternatives are exhausted, and this may
involve exercise of the government's right to appeal from adverse decisions made
-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 relevancy. A purported risk of
disclosure of sensitive information 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 information. Thus, they argued, an indictment would be aimless because
we would certainly have to abandon the prosecution rather than permit the dis-
closure of the data. It was a worthwhile strategy, but we concluded we were not
faced with any imminent dilemma. We satisfied ourselves that an indictment
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 pro-
duction of highly classified files, including nuclear missile-targeting plans. The
defendants were seeking to utilize discovery to obtain national security informa-
tion?.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 clime 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
as 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
klefendant is entitled to introduce background information 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.,
The new Federal Criminal Code expressly recognizes that proposition. Section
1315(d) of S. 1437, 95th Cong., as it passed the Senate on January 30, 1978, pre-
.chides a defense in a false-statements prosecution that,,in a closed congressional
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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 permis-
sible defense to them, to deal more comprehensively with this problem.
Another substantive legal doctrine of possible use to avoid disclosure of classi-
fied 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 government. See United States v. Rey-
nolds, 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 diplomatic secrecy could prevail in
such a situation. United States v. Niwon,418 U.S. 683, 710-11 (1974).
Further definition of this "state secrets" privilege is in the hands of the Con-
gress. 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 unacceptable 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 informa-
.tion.is priviliged, the problem then posed is to determine the effect of the priv-
ilege on the further progress of the case. The proposed rule of evidence promul-
gated 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' testimony, finding against the government
upon the issue as to which the evidence is relevant, or dismissing the action.
See 2 J. Weinstein, Evidence ? 509 (1977). The' proposal simply restated the
flexible discretion possessed by a trial judge. Under.,the Federal Rules of Crim-
inal Procedure, for example, a trial judge has an array of sanctions he can im-
pose in the event the government fails to comply with a discovery request. See
F.ed. 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 Coilrt
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 i7. S. 53. 62 (1957). Thus the defendant may .hot compel dismissal when, the
goi=ernment refuses to disclose the identity of an informer in the context of deter-
mining whether probable cause existed foi? a search or arrest, IllcCray v. Illinois,
,386 U.S. 300 (1967), or when the defense to which the.information may be rele-
vapt.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 .se-
curity, information is privileged, the remedy available to the defendant would vary
depending upon the circumstances of the, case Atone end of the scale, for exain-
ple?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 the. 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 congressional, action would. be
useful. Congress has authority to define rules of procedure and to prescribe a slid-
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ing 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 di-
lemma, several procedural mechanisms can be used to reconcile the accused's
right to a fair trial with the public interest in maintaining legitimate state se-
crets. The most obvious technique to insure protection of classified information
during criminal litigation is the in camera proceeding.
I readily acknowledge a well-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., concurring), or
whether the defendant has standing to challenge the surveillance, Taglianetti v.
United States, 394 U.S. 316, 317-18 (1.969) (per curiam). The same type of pro-
ceeding is also permissible to determine the relevancy of material sought from
the government 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 involv-
ing classified information, to have the court act in camera to decide preliminary
issues, including discovery requests and admissibility of evidence, that involve
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 U.S. 928 (1973), a criminal prosecution 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.
., , Iii other cases involving the risk?of,disclosure of sensitive information, the use
of4imited in camera procedures, allowing either defense counsel alone or defense
counsel and the defendant to be present, maybe sufficient to protect the informa-
tion while respecting the defendant's rights. To illustrate, the courts have
approved the exclusion of both the public and the defendant from limited seg-
ments of criminal hearings in order to protect the confidentiality of the "hijacker
profile" developed by the Federal Aviation Administration:'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 atrial in order to preserve the confidentiality of
undercover narcotics agents. See United States ex.rel. Lloyd v. Vincent, 520. F2d
1272, 1274 (2d Cir.), cert. denied, 423 U.S. 937 (1975). This type of 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.mmimal incremental risk from exposing the sensitive information to the defend-
ant or his counsel.. Even in 'other cases, the use of in camera hearings on pi?elini-
i-lary questions of admissibility of evidence, coupled with carefully designed pro-
tect i've orders, could greaty reduce the potential harm of general public disclosure
o sensitive in
formation. The problems I have just discussed involve production of information that may
he classified, especially information from the go'vernment'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 pf'd
criminal trial, including the rules of relevancy, ply view on this,problem is. sup-
ported, 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 ,.stat-
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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 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 circumstances 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 in-
sanity 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 jeopardly 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 proc$
dures for screening evidence derived from electronic surveillance, 18 U.S.U.
2519(9) and (10), 3504, statements of government witnesses, 18 U.S.C. 3500,
and confessions, 18 U.S.C. 3501, provide ample precedents for creation of proce-
dures dealing with the use of national security information in criminal cases.
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 Execu-
tive 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 (1%5)
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. 515, 516.
Compare United States v. Nixon, 418 U.S. 683 (1974)
Congress has specifically provided in 28 U.S.C. 535ka) that the Attorney
.General has the authority to investigate violations of the federal criminal
code by government employees. To underscore this responsibility, agency heads
are directed to report "expeditiously" to the Attorney General any informa-
tion concerning. criminal misconduct by government employees. 28U.S.C. 535
(b). Thus, file heads of other agencies are not normally free todecide'whether
their subordinates.should:be prosecuted for apparent violations of the law.;.:'
Congress, however; has.giventhe Director of Central Intelligence the statiitiory
responsibility to protect intelligence sources and methods from unauthorized
disclosure. National Security Act of 1947, 50 U.S.C. 403g. In specific cases, the
ing that none of the prisoners would be prosecuted, was 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 with
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 infor-
mation 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
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.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 hypothetical problem. In another
:forum' I have testified-critically-about the issues raised by a 1954 under-
-standing 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.
It would be worthwhile for the Congress 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 II 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 enforcemment officer-. If
the Attorney General and the Director of Central Intelligence cannot agree, the
:matter is presumably immnportant enough to call for Presidential resolution.
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 indi-
vidual defendant as well as the collective security of the nation, cases will arise
.requiring 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 pos-
sible to avoid grasping either horn of the disclose-or-dismiss dilemma. And per-
haps when disclosure seems inevitable, it may not really portend national
-disaster.
Mr. LACOVARA. Thank you, sir.
My statement this morning attaches to it the testimony that I have
.given previously before this subcommittee, as well as the statement
that I gave last year before the Subcommittee on Secrecy and Disclo-
_-sure of the Senate Intelligence Committee. and together these state-
ments make a package that sets forth my views on what the nature of
the problem is and what reasonably should be done to cope with it.
One of the threshold questions, of course, is : Is it worth while for the
-committee to bother with legislation? Some people, have suggested
that there is nothing terribly dramatic or new in these legislative pro-
posals and that the Federal courts already have the power to come up
with some of these alternatives and sanctions. In a sense, that observa-
tion is accurate, but L think it misses the point.
'It-is true that the Federal courts today, under the Federal Rules of
Evidence and the Federal Rules of Criminal Procedure, have some of
the flexibility to do the things that might help avoid the "disclose or
? dismiss" dilemma and thus avoid aborting otherwise worthwhile crim-
--inal prosecutions while at the same time protecting the defense inter-
ests. ? What we have seen. though, over recent years. has been a lack of
consistency, a lack of will, and a lack of imagination on the part of
-many Federal trial judges, and I think for that reason, and perhaps
principally for that reason, it is important for Congress to lay down
in a systematic fashion what Congress believes should be the steps that
:-are taken to avoid the needless frustration of criminal prosecutions-
1 Statement, "Prosecutorial Agreements Between, the ,Department of Justice -and other
Fedoial. A'genefes," be:dre the House Government Operations Subcommittee on Govern-
-:ment Information and Individual Rights, July 23, 1975.
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112
Each of these bills attempts to do that, and I think the attempt is.
quite worth while.
? On that same subject, Mr. Chairman, it is true that the number of'
cases that are affected by this problem each year is a relatively small'
number, but I still submit that legislation is warranted because the
.cases tend to be of unusual public importance. Whether the matter in-
volved is espionage, major drug trafficking, or misconduct by senior
Government officials, the underlying prosecution is one in which the
people of the United States have a peculiarly grave interest in seeing
to it that there are no unnecessary obstacles to going forward with a
trial on the merits to determine guilt or innocence.
So I think legislation is amply justified. and the committee's efforts
in this regard. I think. are a quite justifiable and important endeavor..
The comment that Federal judges already have some of these pow-
ers I think also tends to show why the bill ought not to be controver--
sial.. Few of the devices that are proposed in either of these bills is,
wholly new or radical. What we have here is a synthesis of techniques.
that are currently available to Federal judges if only they had some
consistent approach and some incentive to go at. the process in this,
way. My statement explains why I believe each of the major devices,,
including pretrial notification by the defense of its intent to use classi-
fied, information, in camera and sometimes ex parte screening, and
other similar techniques including interlocutory appeals by the United
States, have precedents in existing provisions of Federal law. This:
attempt, as reflected in these two bills, is an effort to borrow from
those analogous situations to make a comprehensive system for han-
dling this' disclose or dismiss" problem.
hthink the concepts, in the main, are properly adjusted to deal with,
this situation.
I am not going to belabor the subcommittee's time this morning with
some of the technical. drafting suggestions that I have made in my-
statement, which I think are necessary to make sure that the balance
between Government interests and defense interests is properly struck.
,Some of the phrasing in the legislation may seem too broad and im
precise and I have made a number of specific suggestions that I be-
lieve should be considered as drafting improvements.
One of the principal debates, as I conceive it from the testimony of'
some other witnesses, is whether or not it is fair and constitutional for
the bills to provide that some of the screening to be doneby the trial
judges will be done in camera, and whether it is fair and constitutional
to provide that-the defendant will be provided with substitutes rather,
than with the original source material. For reasons that I explain at
seine length in my statement, I believe that the answer to both of
those questions is in the affirmative, that it is appropriate in light of'
practical experience and prevailing case law to use these techniques
for: dealing with the disclose'or dismiss problem.
There are a. number of situations in which in camera proceedings-
are used, even under practice today. One of the exampes of such use
involves the-attempt to screen classified information. That, for : ex-
ample, came in the Nixon Tapes case where Judge Sirica was ordered
to examine the White House tapes in camera to see whether or-not.
certain material should be excised, including state secrets. This tech
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,pique has also been provided by Congress in the Freedom of Informa-
tion Act which, although it is a civil statute rather than a criminal
statute, nevertheless reflects the judgment by Congress-and it is a,
judgment that I endorse-that trial judges have the competence to
determine in classified documents what is relevant and what is not.
The same judgment about the competence of Federal judges to sep-
arate the relevant from the irrelevant in screening material in camera
is also reflected in other statutes that Congress has passed in certain
provisions of the Federal Rules of Evidence, and in general trial
.practice.
I believe that the experience with screening by judges in chambers
.has generally been satisfactory.
A related question that has been raised by some members of the
defense bar is whether the excising from original material of certain
-information may in some respects limit the defense ability to use those
documents for cross-examination. I believe that to the extent that there
is some impact on the defense use of classified information through
-the provision of substitutes or summaries, that is a tolerable impact.
Each of the bills, particularly if adjusted in the way that I have sug-
.bested, would put the responsibility on the trial judge to make a find-
ing that the provision of substitutes would not substantially interfere.
with'the defendant's right to a fair trial. I believe that this provides an
.adequate measure of protection for the defendant's interests, while rec-
onciling the Government's interests in not permitting the gratuitous
-and unnecessary disclosure of classified information.
I think that it is a process that the trial judge will be competent to
handle because he will be, if he follows the provisions of either of these,
two bills, reasonably' familiar with the outlines of the Government's
case and what the defendant contends he needs this information. for,
and thus will be in a position to make a practical judgment about the
relevance of the proposed information and about the adequacy of the
substitutes that may be tendered in lieu of the disclosure of the original
-classified information.
I emphasize that I suggest that the standards provided in each bill
for that inquiry be changed. The bills at present provide that the judge
is to make available a substitute unless it would be necessary for. the
-defendant to have the original information. I suggest that that may
tilt the balance a little bit too far in favor of the Government, and in-
-stead, I would suggest that the subcommittee substitute the following
test, that the trial court agree to make available the substitutes in lieu
,of the original classified information "unless the court finds that no
alternative will provide the defendant wtih substantially the same
ability to prepare for trial or' to make his defense as would the.dis-
-closure of this specific classified information." That inquiry,-I believe,
is the relevant one, it is the fair one, and I believe it is one that is totally
free of serious constitutional objection. It is similar to the constitu-
tional inquiry that the Supreme Court pursued in upholding the valid-
ity of the "use immunity" statute.
The subcommittee will recall that 8 or 10 years ago Congress enacted.
-a, statute that permitted the courts to-displace a claim of fifth amend-
ment self-incrimination by guaranteeing the defendant that whatever.
-he said under -compulsion would not be used directly or indirectly
-against him in a subsequent criminal proceeding. The Supreme Court.
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sustained that substitute protection as constitutional because it pro=
vided the defendant with substantially the same measure of protection)
as .the constitutional clause itself was designed to provide.
I believe.that analysis demonstrates the validity of the basic struc-
ture of each of these two bills. I do reiterate, however, that it would`'.
be important for the committee to use a substantial equivalence test
rather than the "necessary" test.
There has also been some discussion about the Justice Department's.,
proposal to amend the Jencks Act to require the court, upon the Gov--
ernment's request, to exclude irrelevant material that is classified and:
to add, as well, a provision that prior statements by a Government
witness need not be disclosed if they are consistent with his testimony.-
Defense counsel have pointed out in that context that even relatively-
minor deviations may be useful in constructing cross examination.-
That, of course, is true, but what I said a few moments ago about the
validity of preclusion of the use of marginally relevant information,
applies here. I think it is within congressional power to provide, for-
an adequate public interest, that merely marginal relevant information,
will. be withheld. If the test under the Justice Department's proposal
to amend the Jencks Act is modified in a way that I will suggest in,
a moment. I believe it would be permissible.
The modification is that the trial judge who, under this procedure,
would have heard the Government witness testify already, must find
not just that the prior statement which contains classified information
is consistent with his testimony on the stand, but that it is fully con-
sistent. I believe that adding that additional adverb will provide the
defendant with the measure of protection to which he may be entitled'
in insuring that the judge isn't overlooking deviations or deflections
that might have some significant use to the defense. This test, I think,.
would filter out the marginally useful from the significantly useful,
and thus once again accommodate the Government's legitimate inter-
ests in secrecy and the defense interest in a fair trial.
The final policy point that I would like to address, Mr. Chairman,.
is raised by title II of the subcommittee's bill, H.R. 4736, the title
dealing with congressional oversight in this area. The title requires-
the Attorney General to promulgate detailed standards for making-
the prosecutive judgment in cases in which classified information is-
involved. It also requires the preparation of detailed prosecution,
memoranda whenever there is a decision not to prosecute on these-
grounds, and it requires the automatic reporting of those memoranda
to this committee and its cognate committee of the Senate.
Addressing the first provision, the requirement that the Attorney-
General promulgate standards for exercising discretion here, I have no-
objection in principle to that measure, but I must suggest to you in alll'
candor that I think it is not likely to accomplish much. In my ex-
perience, the factors that are considered in making a prosecutive judg-
ment are so multifaceted, and the weighing of each of those factors-
so imponderable that I believe it will not be useful to have, a set of
criteria that are purportedly guiding that decision. The criteria must
. either be so tight as. to be,hamstringing, or so vague as to be uninforma-
tive:
Not so much as an alternative, but byway of an addition, however, r
suggest that'the subcommittee consider what I think is the more signif-
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115
icant issue within the. executive branch in this field, and that is 'de-
termining who within the executive branch has the ultimate respon-
sibility, .short of the President, for deciding whether to pursue an in-
vestigation or a prosecution. As the subcommittee knows, history is=
spotted With incidents in which there have been confrontations between
the intelligence agencies and the Justice Department over access to-
classified information sand. on the decision whether to declassify infor-
mation if necessary to sustain an investigation or prosecution. That
conflict and tension has led, in some cases, even to the unwillingness of'"
the Justice Department to bother going forward with an investigation
because of the anticipated objections of the intelligence community.
? For reasons that I have outlined in this statement and in some of
my earlier testimony, I believe it would be quite desirable for the
committee to define in statute that it is the Attorney General who has--
the ultimate responsibility for deciding on the extent to which he and
his subordinates should have access to classified information, and it
is he ultimately who, after consulting with the Director of Central'
Intelligence, should decide where the ultimate national interest lies-
in the 'event the "disclose or dismiss" dilemma must be confronted.
Addressing now the second basic provision of title II of the sub-
committee bill, the requirement that detailed memorandums be pre-
pared and furnished in every case to this subcommittee, there I would'
submit that the subcommittee bill goes too far. I think there is a legiti-
mate question whether the Congress should define how the Justice-
.Department mechanically makes a prosecutive decision within the
Justice Department and what kinds of files should be kept. But be-
yond that prosecutive memoranda, which are almost inevitably going-
to be prepared anyway in the course of events, be forwarded auto-
matically to the oversight committees seems to me to be an excessive
encroachment on the independence of the Justice Department in mak
ang prosecutive judgments, and an excessive departure from the
principle of separation of powers.
I do support the principle of congressional oversight, of course, as -
I believe the subcommittee is well aware, but I think the committee's.
interests and the congressional interests can be well enough protected'
without requiring a disclosure of the raw investigative files or the raw-
prosecutive memorandum on a routine basis.
What I suggest in lieu of the subcommittee approach and in addition
to what the Justice Department is prepared to concede, is that Congress-
specify that whenever judgments not to prosecute are made because
of this problem, the oversight committees be notified of the identity of
the prospective defendant or the actual defendant and the nature
of the offense for which he was tinder investigation or was being
prosecuted.
In a specific case, then, the subcommittee can make a determination
whether or not it wishes to pursue the reasons behind that individual
judgment. I think that adequately provides the safety valve to see to
it that this system that each of the bills would be setting up is being-
adequately, pursued in practice without needlessly trenching upon
what .the Justice Department feels. are its prerogatives.
Mr. MCCLORY. You would just delete the language that requires the-
findings to include classified information?
.
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Mr. LACOVARA. That would do it, Mr. McClory, so that there would
be automatic reporting on the basic events without going into details
about the classified information or the balancing process that' the
Justice Department went through.
In conclusion, Mr. Chairman, I repeat my remarks at the outset
that I consider each of these two bills very useful and creditable efforts
to resolve the' "disclose or dismiss" dilemma. Each of them, I believe,
should be subject to some significant modification that I have described
in my. statement, but I hope that the rather wide support for the gen-
eral concept will encourage the subcommittee to pursue this effort
through to legislation.
Thank you, sir.
Mr. MURPHY. Thank you, Mr. Lacovara.
The administration bill requires the Government to prove the na-
tional security sensitivity of the information at issue before an in
?camera hearing can be held. H.R. 4736, on the other hand, authorizes
:such a hearing upon the certification of the Attorney General that the
information-at issue is classified.
The question underlying these ,provisions is whether or not the court
,-should hear arguments as to the national security sensitivity of the
information before a decision on admissibility is made.
. Mr..LACOVARA. I find the difference in the bills interesting because
the subcommittee bill seems to allow more automatic power to the
Attorney General than the Justice Department's own bill does.
I prefer the Justice Department approach. As I explain in some
greater detail in my statement, Mr. Chairman, it seems to me that the
-danger of prejudicing the trial judge's ultimate ruling on admissi-
bility or the adequacy of substitutes by the ex parte submission by the
.Justice Department of the explanation of the sensitivity of the in-
formation is relatively small. The judge is going to be exposed to that
explanation.by the Justice Department at some point in his delibera-
tive process.
I do not think that it will measurably add to the possibility that
his judgment, on those other questions will be affected if he has this
-submission made to him earlier ex parte.
. In trying to balance these two alternatives, as I explain in my state-
ment, I would rather not give the Justice Department the power to
-trigger- an in camera hearing automatically. I would rather that they
have a burden to meet to justify the holding of what is still an unusual
procedure, although by no means unprecedented. So for that reason
I support the administration bill's approach rather than the subcoin-
.mittee's approach.
Mr. MURPHY. Mr. McClory.
Mr. MCCLORY. Thank you very much.
First -of all, I would like to express my appreciation for your testi-
Fmony. It is consistent with. the high quality of testimony which you
provided last year in connection with the electronic surveillance legis-
lation; which unfortunately the Congress saw fit to pass, notwith-
standing the very balanced. presentation which you made, and some
of which I adopted in arguing against the enactment of that bill.
You do? bring a scholarly, balanced, and unemotional approach to
legislation and legislative work, and I personally appreciate it very
much. It is very helpful to us.
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Mr. LACOVARA. Thank you, sir.
Mr. MCCLORY. I am concerned about the in camera proceedings that
we are going to have, not because I disagree with the precedents ' to?
which you have made reference-the tape case and the other types of
recognized in camera proceedings that we have-but it seems to me
that more recently, especially in the Gannett case, we are into a new
era. I just don't know that it is going to be possible in the future to,
maintain the secrecy of in camera proceedings. And, I don't know
how we are going to be able to handle that.
The decision of the Department of Justice yesterday or the day
before not to prosecute the Progressive magazine and the other sheet
? up there in Madison, Wis., suggests to me that maybe the time of'
secrecy of any kind of classified material is gone, and I know there are
some Members of the Congress who feel that the Government should
have no secrets, and maybe that is where we are going to go.
You made reference to the subject of standards and the importance
of developing standards. On the other hand, I wonder if it is not, if
there are not different types of standards that must be considered as
far as classified information is concerned. I am thinking, for instance,
about classification of narrative in contrast to' classification of the
name of an informant, for instance, and classification of maybe useful"'
information on the one hand, and classification of a source or a'
technique.
Do you agree that there should be different standards and different
authority in the legislation for establishing different levels of stand-
ards for classified or secret information?
Mr. LACOVARA. Mr. McClory, if the subcommittee had the time and'
the inclination, I would consider that a very worthwhile undertaking..
You might recall that at the hearings held before this subcommittee.
in January of this year, at which I also had the privilege of testifying,
the inquiry was a little broader. It dealt not simply with graymail but
with the whole question of leaks and the adequacy of the espionage.
laws today, and among the issues being considered was the definition-
of "national security information" or classified information. The sub
? committee was considering breaking that general concept down into
components that would be entitled to less or greater protection.
It seems to me that what The Progressive Magazine case illustrates:
in comparison, for example, with the Pentagon Papers case is that
there are certain kinds of classified data for which it is hard to con=-
ceive of any justification for disclosure to the public or in the course
of a legal proceeding, whereas other kinds of classified information'
may truly be relevant to a trial. I suggested one in my statement. The
Progressive Magazine case raises another of the same vein. Technical
secrets, technical data, it seems to me, rarely if ever will have a legiti-
mate basis for public disclosure in a trial or through some other mech-
anism like a leak. Contrast that with what you might' call narrative-
information about policy, which the executive may classify for one
reason or another, but that kind of information may be legitimately
relevant either to a trial or to the ability of the public to make a judg-
ment about national affairs.
It would be a more ambitious enterprise to define in this bill different-
categories- of classified information, some of which would be auto-
matically immune from disclosure'and others of which would be sub--
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_ject to procedures of this sort. Each-of the. bills simply takes ,the
-existing'broad concept of classified information and does nothing to
change it, and then proposes a set of procedures that would deal with
.all types of classified information without further distinction.
I think trial judges in practice might make the distinction that we
-..are talking about because they would be hard pressed to find that the
technical secrets of constructing a hydrogen bomb could rarely be
relevant to the defense in a criminal case, or that the actual targeting
sequence for nuclear missiles would actually be relevant to a criminal
,trial. But the bill doesn't attempt to make that distinction. Perhaps
it should. That is another level of drafting and it involves other diffi-
, cult choices, as we know : what kind of information to call sensitive
intelligence information-or however the special category would be
-designated-and which types of otherwise classified information
should simply receive the general protection.
Mr. MCCLORY. What annoys me politically is the manner in which
material is declassified. It seems to be a prerogative assumed by the
-executive department and sometimes by Members of the Congress
to independently determine what is to be declassified, and we fre-
. quently see members of the executive branch announcing or disclosing
for the first time in the media, principally on television, material
that has been classified until that very instant that the public an-
noucement is made. The same offense is also committed-I call it an
offense-by Members of the Congress from time to time, in my view.
The administration bill would permit the prosecution to utilize
classified material in an open court proceeding without any prior
declassification.
How do you feel about the provision in the administration bill, and
if you want to comment on the other offensive practice, I would enjoy
-that, too.
Mr. LACOVARA. Mr. McClory, the phenomenon that you described,
I think, has been with us since the Republic was established. I have
done some work on that subject as well, and you can go back to the
time of George Washington and John Adams and find them or in some
cases their opponents selectively leaking diplomatic correspondence
and what we would today call national security information or state
secrets. I don't know how one can legislate against the opportunistic
use of secret information. Information or knowledge is power, and
people who are in public life are inclined to use it for the interests
-that they consider best, in the public interest or personal interest. I
think that all we can do is hope that public officials exercise some
reasonable judgment in deciding when they are going to release other-
wise secret information.
The problem of declassification in court is a somewhat different one
because the process that we are discussing this morning involves 'a
- deliberate weighing by the Attorney General and his subordinates of
the interest in going forward with a criminal investigation against
'the protection of that classified information. There would be some in-
- stances in which the classified information, if it would have to be
disclosed in order to go forward, would require that the prosecution
.be aborted. In' other cases we are assuming that the interest in getting
-to the bottom of alleged misconduct may, outweigh' the significance
of that particular piece of classified information.
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I regard that as an inevitable choice that hasto be made', and as long
-as the decision to declassify it through its release in a trial, if it has
.to be released, is made in good faith and with appropriate consulta-
tion with intelligence agencies, the decision to release it does , not
.trouble me.
Mr. MCCLORY. Just one more question.
You appear to be in opposition to any interlocutory appeals with
regard to the issue of utilizing or disclosing of classified material,
rand apparently believe that the entire appeal should await the out-
come of the case.
Mr. LACOVARA. No, I may not have made myself clear in my state-
:ment, but I do explain that I support the notion of interlocutory
appeals, but I think Congress should require and specify that the
appeal be permitted only to the court of appeals, the first tier, with-
out adding on an opportunity for Supreme Court review at the inter-
-locutory stage. That will prevent the delays from getting totally out
~of hand.
As you know, the certiorari process of the Supreme Court may add
months or even years to the process, and if Congress is going to allow,
interlocutory appeals by the Government, there will be some delay,,
inevitably. I think that is a worthwhile compromise, but I would"
say at that stage there should not also be an opportunity for Supreme
Court review.
Mr. MCCLORY'. That worries me in the District of Columbia Cir-.
suit, but it wouldn't otherwise.
Mr. LACOVARA. Well, I think that is a tradeoff. I have some experi-
ence with the District of Columbia Circuit, and I know it is Russian
roulette, Mr. McClory. It depends on which panel you get, and it
is quite vivid, and I don't think any lawyer would deny that.
Mr. MCCLORY. OK, thank you very much, Mr. Chairman.
Mr. Mmirzzy. Mr. Mazzoli?
Mr. MAZZOLL Thank you very much, Mr. Chairman, and welcome
-again, Mr. Lacovara.
As sort of an aside here, I would like to make note that I was read-
ing the morning Washington Post and' I noticed that your son was
nominated as a national merit semifinalist from his high school, and
'I think that you as a parent, I am sure, are very proud of that.
Mr. LACOVARA. I am, and thank you, sir.
Mr. MAZZOLI. You mentioned that this bill is a synthesis of tech-
niques and noted that if the courts had some sign of encouragement,
some inducement to exercise and use these .techniques that they would,
-:and that there would be more of a consistency and there would be more
,of a pattern rather than this hopscotching around, and, accordingly
the cases would be handled in a better way.
I wonder if you might expand on'that point. I think that if we take
a bill like this, out of this committee and to the floor, it seems to me that
we are going to have to explain it to the Members of Congress not as an
intricate legal document, though it is that, and not, as a series of con-
'stitutional cases which have been decided, though'we will have to have
those available, but what does it really do in the real world of intel-
ligence work and in the real world' of ' courts, 'arid I think that. that
term "synthesis of techniques" is an interesting way of pulling it to-
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120
gether, and I wonder if you might expand that for just a few moments.
II gather you said all of these have some precedents, they have been used
by some trial courts in the past, and whether we can emphasize that in-
selling this bill.
Mr. LACOVARA. I believe you can, Mr. Mazzoli.
When I described the bills as a synthesis of techniques, what I was:
suggesting is that the problem of balancing Government interests,
against defense interests is not a novel one ; it is not unique to this area.
It arises, for example, in the informant area where the Government has:
an undercover agent, and for some reason the defendant at trial wants
to learn-the identity of the informant-25 years ago or so the Supreme-
Court in the Roviaro case confronted' that problem and said that ina
some situations the defendant may be entitled to the disclosure of the
informant and in others he may not. If the court finds that he should'
obtain the identity of the informant and the Government neverthe-
less insists on protecting the identity of the informant, certain sane--
tions may be imposed, and they should be tailored to the case, to make-
sure that the defendant's interest is being adequately protected.
One of the things that this bill does is to borrow on that experience-
and to outline for courts that those efforts that the courts developed
on their own in a case by case or common law methods have to be-
applied. in this very sensitive and- important area of prosecutions that.
involve national security information. The court has to weigh defense
interest against public interest, and has to decide what alternatives-
will be available to protect the public interest as well as the defense-
interest.
I think the justification for the bill and its structure can be ex-
plained as an attempt by Congress to give the courts guidance on how
to resolve a problem that has proved very vexing for them. The cases,
that are cited in my testimony before the subcommittee back in Jan-
uary, which is attached as appendix A to the statement this morning,.
describe how, just in the. past year, some courts have been willing to-
use some of these techniques, but other courts havedeclined to use these.
techniques in cases that seemed quite comparable.
So the legislation attempts to provide consistency and a systematic-
approach. I believe that it is an appropriate function of Congress to-
define the rules of procedure that the courts will follow, and to define
them by making what are basically policy judgments about how
various competing and legitimate interests should be balanced. Each
of these two bills, with appropriate modifications, attempts to do that.-
Mr. MAZZOLI. Thank you.
I would like to ask one other question, if I could.
Without pinning you down, could you grade, perhaps, the two or-
three most important provisions which are put forth with respect to-
these techniques in the committee bill? In your mind, what are the one
or two or three things that you believe, if adopted and put into some
statutory law, would provide what is really needed to solve most of
these vexing and difficult questions?
Mr. LACOVARA. I think the principal device that would be codified by
the: subcommittee bill or by the administration bill, for that matter,
would be the specification of alternatives that the'court is to consider-
-in deciding whether to disclose original classified information to the-
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defendant or at the trial. That mechanism requires the court to . go
.through a step-by-step process of analysis to decidehow best to recon-
cile the defense interest with the public interest, and I think it is that
.identification of the choices that must be considered that will be most
useful in guiding the courts in handling these cases.
Mr. Mazzoni. And one final question.
You, I believe, indicated in your testimony that you preferred the
Justice Department approach in the situation where the judge is pre-
sented with this information, as against the committee bill where there
is a triggering in certain occasions by the Attorney General and auto-
matically there is the in-camera hearing.
?
th
i
t
d
s again
ose po
n
on
Would you expan
Mr. Lacovara. Certainly.
The debate on that issue deals with two issues. One is whether or not
the Justice Department's ability to-present its explanation of the sensi-
tivity of the information will prejudice the judge's ruling on the ul-
timate decisions he has to make. Those decisions are whether the evi-
dence the defendant is seeking is relevant and whether, if it is relevant,
:some substitute for the information will be.adequate.
The other issue is whether or not in camera proceedings ought to be
triggered solely at the request of the Attorney General.
I said that I preferred the Justice Department or administration
:approach for this reason. I find that first factor, the possible prejudice
of the judge, an overstated one. The judge is going to be exposed to
information explaining the sensitivity of the information at some
point before he makes his ultimate decision. It doesn't seem to me to be
more egregious or more likely to affect that judgment that it comes
to him at the preliminary or triggering stage.
On the other hand, I think that, for reasons to which Mr. McClory
.adverted in referring to the Gannett Newspaper decision, we. still
:should be somewhat chary about holding in camera proceedings. They
.ought not to be automatic, even in this field, and for that reason I think
:it is appropriate to say that, before the judge decides to hold an.in
camera .proceeding on this subject, -the Government ought at least to
make a preliminary showing that 'there is a good 'reason for closing
this aspect of the proceeding to the, public. And that is why I resolve
the balance in the way-that the Justice Department does.
Mr. Lacovara. It is .al-
I. certainly thank -you
MAZzoLI. Well
Mr
,
,
.
-ways a pleasure to hear you.
Mr. L&cov A. Thank you.
Mr. MnzzoLi. Thank you; Mr. Chairman.
Mr. MURPHY. Counsel?
Mr. O'NEIL. May I follow up Mr. Mazzoli's question?
Mr. MunPHY. Sure.
Mr. O'NEIL. Mr. Lacovara, I think the approach in H.R. 4736 is.,bi-
-furcated. The first question is the relevance or admissibility of a ;par-.
-titular .piece -of information, document, and any subsequent decisions
-that.the.court has to make about substitution or-the.later use of that
information -in court is clearly separated from the -first.determination
--of relevance or admissibility.
Why do you- take the 'position you do? Certainly. you could divorce
-the-issue' for instance, of whether or not to?have-an automatic in.casn=
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era proceeding from that issue. It is a question of whether or not-.
something is relevant or admissible under standards that are now ex-
isting and which no one suggests that, we change.
Mr: LACOVARA. You are correct that those are issues that can be,
analyzed separately. The.. Justice Department's single proceeding-
rather than the bifurcated proceeding strikes. me as a. more efficient .
one, and that is one of the reasons why I suggested in my testimony-
that I prefer the basic structure of the administration bill rather than'
the subcommittee bill, because it does have that series of decisions
made in a continuum rather than in a bifurcated way.
One of the factors the judge is certainly going to consider in weigh-
ing whether to. make the original information available to the defense
or to permit its use at a public trial is the.relative delicacy of the in-
formation. I think that is an appropriate balance for him to make..
In balancing importance or relevance to the defense against the non--
disclosure of that information or the use of some substitute, it is ap-
propriate for the judge to be considering just how delicate, sensitive-
and' damaging the classified information would be. Now, ultimately,,
if he decides, according to one of the tests "that we discussed, that it
would be unfair to the defense to withhold the information from the
defendant, he is not permitted to withhold it regardless of how sig--
nifica.nt or delicate or sensitive the information is.
But I think that is an appropriate inquiry for him to make, and:'.
for that reason I am not troubled by the justice Department's pro-
posal that it must make a preliminary showing on that subject even!
to getan in camera hearing.
Is that responsive? Maybe I am not
Mr. O'NEri. It is, except I wouldn't-maybe I used the wrong word,..
the wrong emphasis in using the word "bifurcation." I consider it a
continuum if you have a decision on relevance or admissibility, you
then move on in the same proceeding to determine whether or not, since
the evidence has been determined relevant or admissible, to whether-
or not a substitution can be made or some sort of deletion or'summarv
can be made. At that point, it is clearly important to know what the'
sensitivity of the information is. Then you can move on, if the Goy.-
ern'ment still refuses to produce or make that information available-
to the defendant,' to the question of whether or not there is an appro-
priate remedy that ought to be exercised by the court, and the Govern-
ment
in effect gets an advisory opinion from the court on what that
would be. It then can make its decision in the full light of knowledge
of what will happen if it provides the information and what will
happen if it'does not.
But the question of the sensitivity of this information in' terms of'
the national. security really doesn't- bear, it seems to me, on the first
point, which ,is; whether or not under existing standards of relevance -
ot' admissibility this information' could have been provided the de-
fetida.nt.- Then there i?' a continuum. That is just thee first part,'the
initial ,determination is divorced from the actual sensitivity of the
itlforination,.' and 'the'' certification Of the' Attorney General of the
Unted, States is that measure of imporance'thatyou referred to 'when'-'
.Ott said that this ought not to be an antoniatic in camera proceeding*.
Presumably it is important enough if the Attorney General will'!
actually sign his name to that piece of paper.
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Mr. L ACOVARA. Well; everything you have said is an accurate de
scription of the differences.in the bills. I am not sure I can go much
beyond what I have already said in explaining why I think the Jus-
tice Department's procedure is a more efficient one for focusing the.
court's attention on what is ultimately the issue, and that is whether
or not the defendant is entitled to the classified information or some,
substitute for it. I don't think the differences in pracice are going,
to be all that serious. Ultimately-it is inevitably a two-step process..
Is what he is asking.for relevant in general? And is what he is asking
for necessary or fairly necessary in its original form, or is some sub-
stitute-or description of it, or some sanction in return for nondisclosure
? of it going to protect his interests?
Mr. MURPHY. Mr. Lacovara, we have to go down and meet this
vote.
Does counsel have any questions?
Maybe we could submit some questions to you so that you can leave.
We don't want to tie you up all day. And again, we appreciate your
coining before the committee and helping us.
Mr. LACOVARA. Thank you.
Mr. MURPHY. We will be adjourned and we will be back in about
5 minutes, after we vote.
[A brief recess was taken.]
Mr. MURPHY. The Select Committee on Intelligence, Subcommittee:
on Legislation will come to order.
Our next witness is Mr. William Greenhalgh, professor of criminal
law at Georgetown University Law Center.
. Professor Greenhalgh is also the chairman of the American Bar
Association's Committee on Criminal Code Revision. Although he
does not speak for the ABA today, he brings much thought and, study
to the subject of graymail legislation.
We welcome you, Professor Greenhalgh.
'
[The prepared statement of Professor Greenhalgh follows:]
'My name is Professor William W. Greenhalgh of Georgetown University
Law Center. I. am a former Chief Assistant U.S. Attorney for the District of
Columbia. I have been teaching federal criminal trial advocacy at the graduate
level (E. Barrett Prettyman 'Fellowship Program' L.L.M.' in Trial 'Advocacy)
since 196.3. I also am presently Chairperson of the Criminal Justice Section's'
Committee on Criminal Code Revision of the American Bar Association, as well
as its faculty advisor to the American Criminal Law Review;
:1 'support the concept of H.R. 4736, 'entitled, "The Classified Information'
Criminal Trial Procedures Act," familiarly known as the Murphy Bill. The
Murphy 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 oveisightcapability,
of the Advisory Committees of the U.S. Judicial Conference relative to the
Federal Rules of Criminal Procedure, and/or Federal Rules of Evidence. The'
Supreme 'Court of the United ' States then promulgates rule changes; and you
the Congress, may than work your legislative will on proposed amendments.' It
is my. position that, this method provides for greater- superintendence by involving
tpe~-academic, community, ?the- practicing bar, the ,federal judiciary; and "the
legislature: there appears to be more' flexibility in this approach than to lock
into legislative concrete a highly, complex, albeit important, technically pros--
dnral piece of legisa'tion. '
I therefore, support modest amendments to existing rules and statute. For`
if anything has surfaced during the hearings held by the Legislation Subcom-
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124
imittee on August 7, 1979, it was the fact that existing federal rules appear to
be adequately meeting the problem. The ITT-Chile case was'the only one men-
tioned where an interlocutory appeal procedure would have been helpful to the
Justice Department, and since that remedy was lacking, mandamus was not
.apposite.
I believe that the objectives of section 101 of the Murphy 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 pre-trial confer-
ence to be ordered by the court on motion of either party.
This will still effectuate the salutary goal of section 101 by insuring that
issues involving pre-trial 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 provi-
sion that would require mandatory procedure for determination of classified
information disclosure either pre-trial or during trial (section 102). This amend-
ment should also include the provision found in section 107 of the Murphy Bill
requiring the government to provide the defendant with reciprocal disclosure.
This discovery vis-a-vis reciprocity section is extremely important in view of
Wardisu v. Oregon, 412, U.S. 470 (1973). I believe that the inclusion of the
provision relating to the entitlement of the defendant to be advised of informa-
tion and witnessses which the government intends to use to rebut particular
classified information, as well as the bill of particulars part of section 107,
detailing related aspects of . the prosecution's case, is essential to the funda-
mental fairness of this new rule.
(3) Amend Title 18, U.S.C. section 3731 to provide for an interlocutory appeal
in classified information cases by the government before or during trial. This
amendment should provide also for expeditious determinations of pre-trial
appeals. The provisions of section 3731 as to pre-trial release should be closely
followed, as well. A simple amendment to section 3731 is all that is necessary.
Although the sponsors of the Murphy Bill, in their wisdom, do not include a
Section 10 embodied in both H.R. 4745 (the Administration Bill) and S. 1483
(the Biden Bill) which would create a classified information exception to Title
18, U.S.C. section 3500; commonly and reverently known as the Jencks Act, I do
not support in any way any amendment to the Jencks Act whatsoever. The
House of Delegates of the American Bar Association at its Midyear Meeting
in February, 1979 in Atlanta went on record in opposition to proposed new
Rule 26.2 of the Federal Rules of Criminal Procedure, which would provide
for reciprocal Jencks Act discovery by the government of.defense witness state-
ments. The Drinan Subcommittee of the House Judiciary Committee will hear
from the ABA and other witnesses fairly vociferously on this new proposed
Rule at a later date.
. This is a second attempt by the Justice Department to meddle with a piece
of legislation that has worked pretty well in federal criminal courts for some
22 years. It is the only mandatory trial discovery permitted the defendant. It is
uniformly applicable in all federal, criminal courts. It mandates excision only
of: unrelated matter. It?permits the government the option of refusing to produce
the witness statements. It also provides a list of sanctions for non-disclosure,
which do not necessarily indicate the termination of the prosecution. To create
a classified information exception will predictably lead to other proposed excep-
tions, with the end nowhere in sight.
While it is true that the House of Delegates of the ABA in August 1978" in
New York adopted a new Standard 11-2.6(c) of the "Standards Relating to
Discovery. and Procedure Before Trial," which provides that "disclosure shall
not be required when it involves a substantial risk of grave prejudice to national
security. and where a failure to disclose will not infringe the Constitutional
rights of the .accused," (emphasis added), I believe proposed section 10 will
so intrude. I content 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
government's -accusers.
Statutory.procedures that impair the accused's-enjoyment of the Sixth'-Ameud-
ment by disabling counsel from full assisting and representing one's client are
plainly unconstitutional. Excision of that portion of the witness statement .be-
cause of consistency in the Administration's Bill and substitution of a .summary
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when consistent in the Biden Bill, we submit, completely denies access to the
accused's attorney of one of the most important criminal trial rights-impeach-
ment. First of all, the lawyer in our adversary system should make the decision
whether or not to use the statement, not the court. Denis 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 (1969). Secondly, only the lawyer knows the value of
impeachment. Jencks v. U.S., 353 U.S. 657, 667-668 (1957). In an adversary sys-
tem of criminal justice, there is no right more essential than the right to assist-
ance of counsel. Lakeside v. Oregon, 435 U.S. 333, 341 (1978). But he must not be
denied the means with which to effectuate that right.
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., 2S2, U.S.
687,691-692 (1931).
In summary, excision denies counsel access for purposes of cross-examination,
and 'producing a 'summary disables counsel from accomplishing cross-examina-
tion.-In either case, the accused is denied effective assistance of counsel. Section
10 in both the Administration Bill and the Biden Bill cannot pass constitutional
muster.
Mr. GREENHALGH. Mr. Chairman, it is a pleasure to be here.
Probably I should have put in in the first paragraph with regard to
my experience a couple of items which may lend some credibility to my
testimony.
The first 3 years when I started practicing law in the District of
Columbia, I was assigned as a staff attorney in the Perjury and Fraud
Unit of the Criminal Section of the Internal Security Division of the
Department of Justice. Those 3 years were 1955 to 1958. The dates are
significant because two matters were boiling in that unit at that time.
One was Clinton E. Jencks and the other was Harvey Matusow, who
in no small measure contributed to the Jencks decision because he was
the informant that went sour in the Jencks case.
The other aspect is with regard to having taught Federal criminal
trial advocacy, for the last 17 years at Georgetown. The program I run
is a graduate program dealing with graduate fellows who try cases rep-
resenting indigents at the felony level in the District of Columbia.' I
have had 87 lawyers.work under me, and they have tried, some 2,000
felonies, most of which have been tried in the U.S. District Court for
the. District of Columbia. So I think I know something about the
Jencks Act, and that, of course, as you read in' my very brief statement,
is with what I am most concerned.
Mr. Chairman, as far as I am concerned, your bill is much better than
the other two put together on that. I very much appreciate what' you
are,trying to do, It is Just
a ;question whether you need separate legis-
lation. You have heard Mr. Scheininger, you have heard Mr. Tigar, you
are hearing me today, I think even Mr. Lacovara to some degree would
say do you really need a, separate piece of legislation for a very limited,
purpose with regard to classified information as opposed to maybe
amendments to the Federal Rules of Criminal Procedure, or possibly
to the 500 series in the Federal Rules of Evidence.
For that .reason, I. would suggest and recommend a further con-
sideration concerning key amendments as to the first part of our bill
which deals with really pretrial determinations before we get to,the
Jencks Act. I "think a lot of this can be remedied even though, let's, for
example, say your pretrial conference, under present existing 17.1
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contained in the Federal Rules of Criminal Procedure now, is not
mandatory. For the most part, I think you heard when you were here
August 7 that procedures have been pretty well worked out pretrial
with regard to these conferences between defense counsel and the
Justice Department at that juncture. If you make them mandatory
to require on the national security case, or classified information cases,
I think that would obviate any potential gamesmanship at that level.
Next would be your pretrial determination as well as trial deter-
minations as to relevancy and admissibility which I think could be
handled by proposed new rule 12.3, assuming-and this is very impor-
tant, Mr. Chairman-they pay attention to you with regard to reci-
procity. Now, I think the Department will back down on that. I think
I have heard enough in the streets around Washington, that if you
push them hard enough on that, they will, for lack of a better word,
cave: in on reciprocity, because I think it is only fair, I think it is only
fair when you discuss it in terms of Wardius v. Oregon. I don't care
what they say. If that isn't a due process case, look at the title of the
case, "v. Oregon." It is not in Federal court. It is pure and simple a due
process case.
I'think you are home on that point, and I congratulate you for hold-
ing your ground and making that P. much more fair proceeding.
Lastly, I feel that a simple amendment to present title 18 United
States Code 3731 with regard to the interlocutory appeal would be
much more satisfactory than to write in again a separate provision
as such.
I wholeheartedly agree with Mr. Tigar that pretrial release should
be mandatory. We all know we don't like to see spies and people who
are about to commit treason on the public space. However, the pur-
pose of bail is to make sure he is going to be there for his trial, and in
most instances they are, so far as that is concerned. So with that caveat,
I would agree with Mr. Tigar who testified before you last month.
Mr. Chairman, the next aspect-and I again congratulate you in
your wisdom, along with your sponsors, that you did not put in an
amendment to create an exception for classified information with re-
gard to the present 3500, which is commonly known as the Jencks Aft.
I will try to give you my full feeling on that with regard to the practice
as ' well as the potential unconstitutionality of an inclusion of that
exception to 3500.
One thing I think, Mr. Chairman, and I don't know how exactly
to do this. I was hoping Mr. McClory was here because I know he
sits on the House Judiciary Committee-along with everything else
that is going on in this building, it would appear there is some light.
at the end of the tunnel after 13 years. It is.that a new Federal Criminal
Code will emerge, possibly at the tail end of this year and maybe the
beginning of next year. It is important, therefore, that some coordina
tion be exhibited between what you are doing if the Jencks Act is
to be amended, as well as what both Judiciary Committees are doing,
on both sides of the aisle.
For example, presently in the Drinan draft, which is Senate 1723,
the Jencks Act is yet to be included. I assume it will get there even-
tually because they are going through markup on the subcommittee
now before they get it to main Judiciary.
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However, on the Senate side, in Kennedy's bill, S. 1122, it is in
in its present form. Now, if there are going to be amendments, some-
body has got to be looking a little bit down the road as to which is
going to affect what to that extent. I only point that out based on un-
fortunately my having been sentenced to serve as chairperson of the
Criminal Code Revision Committee for the last 4 years. However,
I am due for an early parole, hopefully pretty soon.
Getting right to the point, I am quite concerned about the Depart-
ment in two instances. This is the, second attempt within a year to
vastly affect 3500. Presently pending before,the Drinan Subcommittee
of the House Judiciary Committee is a proposed new Rule of Criminal
Procedure 26.2. 26.2 came back by the way of the Judicial Conference
of the United States to the Supreme Court who promulgated it, and
in your wisdom, Mr. Chairman, and the House of Representatives,
the bill was dropped in, H.R. 4712, asking for a delay of enactment
by the Supreme Court until December 1980, until the public, the bar
and academia has had an opportunity to express themselves on 26.2.
The reason 26.2 is important is that it is an attempt by the U.S.
Department of Justice to include into the Jencks Act reverse Jencks,
which would vastly affect the trial of cases as. to defense witnesses as
opposed to Government witnesses. And I think testimony should be
taken long and clear with regard to that. All I point out is this is the
second time within a year that amendments are being filed which will
vastly affect the operation of title 18 United States Code 3500.
Let's get right to the two exceptions. One is in the Department bill;
and the other is in the Biden bill over in the Senate.
Mr. Chairman, the four prerequisites right now to the production
of materials under the Jencks Act, simplistically stated, are as follows.
The material must be in-the possession of the Government. Second, the
defense must request production of those documents. No..3, the ma-
terial must constitute a statement within the meaning of 3500(e)'.
That's (e) (1), (e) (2), (e) (3)-(e) (1) dealing with either written,
signed or adopted or approved by the witness testifying, or (e) (2),
substantially verbatim account given to the individual from which
the 'statement. is taken, (e) (3) is grand jury. That must be complied
with. And No. 4, and this is the one, I think, which causes me the most
concern, the statement must relate to the subject matter of the direct
examination.
As you well know, there is no requirement that a document be ad.'
missible. It is for a tool which counsel, defense counsel, may utilize in
rendering effective assistance of counsel with regard to the possibility
of'that high constitutional right known as cross examination. Thtit
is clear.
'Mr: Chairman, I don't know if the Department-and I have yet to
see these cases cited, either by Professor Heymann-I could be wrong:
I don't think they have taken into consideration the ramifications. as
to the practice after that witness testified. Let's leave excision alone for
a minute, let's leave summaries alone for a minute.
First of all,' one of the great recurring problems as far as the prose=
cution is concerned is when the prosecutor interviews the witness prior
to'biial. If he takes'notes, those are producible under the Jencks Act
-under a recent Supreme Court case known as Goldberg V. United
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States, which you can find at 425 U.S. From a practical viewpoint, in.
a case as important as this, the prosecutor is probably going to talk
to the witnesses before they testify, and he is going to have to, you
know, be very mindful as to the production of his notes with regard
to those statements as such. I don't see that-now, remember, we are
talking about something that is happening before, at that time, but
then will be producible subsequent thereto.
Second, if there. is anything that is crystal clear and decided by
the Supreme Court dealing with the supervisory power over the Jencks
Act in Federal district courts, it is the phenomenon known as a
Campbell type hearing, based on Campbell I and Campbell II. Camp-
bell I was decided in 1961. You may find that at 365 U.S. at page 85. `+'
It is a very important decision, Mr. Chairman, with regard to proce-
dures, that must be worked out at the trial level where the.district
court judge plays a very, very important role. These are some of the
things that happen. The Government will, for example, say n.o docu-
ments exist. Careful examination, out of the presence of the jury,
which is required by Campbell, will then find out maybe the document
does exist.
OK, then the court must intervene and assist in the exploration as
to whether or not those documents exist. They must take an active
part as an arbiter, not on either side but as a fact finder, as such.
The next time in a Campbell type hearing, does the material con-
stitute a statement? For example, in Palermo, 1959, the Supreme Court
decided that summaries-and this is what bothers me to a certain extent
on the production of summaries, because the Supreme Court has al-
ready decided in Palermo v. United States in 1959 that summaries,are
not producible under the Jencks Act. I am not sure of the ramifica-
tions of a case that was decided 20 years ago affecting this kind' of
legislation.
The next thing that might be discussed as far as a Campbell type
hearing, the statement is not relevant because it doesn't relate. Well,
that is something; the court can pretty much decide that. Or the fact
is the Government can come forward and say the statement is lost or
destroyed. Now, there is no Supreme Court case on that. However,
I direct staff's attention to a very important case here in the District
of Columbia dealing with lost or destroyed Jencks material, the
United States v. Bryant, 439 Fed 2d 692, D.C. Circuit 1971. What I am
trying to say is the ramifications dealing with Supreme Court deci-
sions' 'purely on supervisory power, not in constitutional power,. are
Campbell I and II. How' is Campbell going to fit into :the scheme of
what they want to do with regard to creating their- exception under
the Jencks Act. A possible memorandum out of the Department might
be helpful as far as. this subcommittee's and the committee's considera-
tion -is concerned.
I would like then; with that short allusion to the Jencks Act, proceed
where I think is the most important, and I am arguing something
that was not argued in Jencks itself. I am-talking about the assistance
of counsel clause in the sixth amendment, and also the right of ' con-
frontation'through cross-examination.
The Supreme, Court, although not entirely appropriate with- regard
to w,hat.:I am about to say, has struck down three State statutes and-,
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one court order since 1961 where there was 'disablement by the statute
for counsel'at trial, at trial to perform and render effective assistance
of counsel. Ferguson v. Georgia, 1961, the statute woudn't let a lawyer
elicit testimony on direct examination. Brooks v. Tennessee in. 1972
failed to let counsel decide who he would put on the stand in order of
.proof. Harring v. New York, in 1975, failed to permit counsel to argue
in summation to a nonjury case. In Getters v. United States, it was a
judge, a Federal judge who said you can't talk to your client during
the overnight recess, and they said that was absolutely prejudicial,
per se, and a violation of the assistance of counsel clause.
What I am leading up to, Mr: Chairman, is disablement with regard
to'blending' in the right. of a lawyer to render effective assistance of
counsel, and" especially with confrontation-type situations.
So let's move right on to confrontation. As the Chair knows, there
are five theories of impeachment : capacity, competency, prior convic-
tions, bias and prejudice, and most important in what we are dealing
here is prior inconsistent statements, which would deal precisely with
production of materials under the Jencks Act.
The highest form of impeachment is inconsistency.
Mr. Lacovara said he reads Alderman one way; I read it -another.
He is reading it a little bit more on the pretrial aspect, and he may be
right. But I think he is dead wrong. Part III of Alderman at the trial
level; we are talking about the adversary system; we are talking about
counsel should make decisions with regard to the production of evi-
dence and not'the' court. And I think the Dennis case, as I have cited,
and Anders v. California all stand for that major proposition.
And Jencks itself really comes down very hard, even though super-
visory in its ultimate decision, there is no higher right than the assist-
ance of counsel, and this was reaffirmed in Lakeside v. Oregon dealing
with jury instructions in 1978.'
Mr. Chairman, I defy the U.S. Department of Justice to demon-
strate to me, for example, in the Biden bill, that after a court decides
that a summary must be substituted how in the world competent coun-
sel can cross-examine a summary based on what that witness said. It
substantially will vary, what was said by that witness, what was con-
tained in that material. How do you cross-examine a summary? I don't
see it.
I mean, I understand what they are trying to do, but I don't see
under the confrontation clause, as well as to render effective assistance,
a lawyer can use that as a tool if it is to exist.
Mr. MURPHY. Mr. Greenhalgh, you are going to have to excuse me,
but you may continue. Mr. McClory is back and he has voted, and you
can bring up that point that you brought up before in his absence
where you mentioned his name.
Mr. GREENHALGH. OK.
Mr. MURPHY. And I will be right back. I just have to.vote.
Mr. GREENHALGH. Sure.
Mr. MCCLORY. Is there a precedent, though, for the use of the sum-
mary? That, I think in the intelligence community, that is a frequent
tool that they use and
Mr. GREENHALGH. How many times, Mr. McClory, is a summary
used in a Federal district court trial for purposes of confrontation?
Mr. MCCLORY. Well, I'm not too sure about the trial.
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existing Federal Rules of Criminal Procedure and Federal Rules of
Evidence, do we have to write something into statutory language?
I can see what, as I say, my proposal along with Seheninger and
Tigar are amendments to the Federal Rules of Criminal Procedure
and an amendment for an interlocutory appeal in existing govern-
mental appeals under 3731. 1 buy that, and I think that is important.
But I do not see, especially when the answer to Congressman Mazzoli's
question by Professor Heymann, and also the fact that there are serious
constitutional problems using summaries at trial as well as excising
material that counsel will not be able to see. And I think that is wrong.
I think it can be argued very heavily that it will interfere with the
assistance of counsel clause and certainly will offend, and probably
constitutionally impair, the ability to cross-examine through the use
of impeachment.
And I think your bill, the subcommittee. bill, which does not have
that provision in it, should resist any embellishments or temptations
'Look it up in the transcript.
Now, you asked also a very interesting question preliminarily deal-
ing with pretrial procedure. If the procedures are adequate, from what
ever thins said people are working these things out under the present,
Mr. GREENHALGII. Well, for example, I forgot to tell you as far as
any background is. concerned, from 1955 to 1958, I was a trial attorney
an the Perjury and Fraud Unit of the Criminal, Section of the Internal
:Security Division of the Department of Justice. I am very familiar
with summaries. And, of course, two of the cases that were running
around there were Clinton E. Jencks and Harvey Matusow.
I agree with you, but-again I am talking from a trial point of view
with regard to the highest right of confrontation, which is impeach-
ment and is also reflected in the assistance of counsel clause.
I draw your attention to, I think, one of the most important . Su-
preme Court cases ever decided with regard to the confrontation
clause-which is on the bottom of page 5 of'my statement-in Al f ors
v. United States, which lays down, I think, important considerations,
especially if there are to be excisions where counsel will not know what
has been excised, or summaries are to be substituted, that we have no
question about cross-examination as a matter of right.
And the other thing : all of a sudden, the Department's attitude is,
well, we will give you summaries of everything that is consistent. Mr.
McClory, I suggest to you, as'a trial attorney, consistency can breed
.inconsistency because of having looked at the document, and counsel,
if that counsel is trained with regard to probing in an exploratory
fashion, which is permitted under the Alford case, consistency may
very well turn to inconsistency and, of course, prior inconsistent state-
ments are the highest form of impeachment. And I strongly-well, to
be very frank, you were here, sir, as I recall on August 6, when Con-
gressman Mazzoli asked Professor Heymann I thought, a very good
.question : "In national security cases, has the Jencks Act been a prob-
lem?" And what was Professor Heymann's reply? "Not in any sub-
stantial way."
Now, do they really need it based on the exchange between Congress-
man Mazzoli and the Assistant Attorney General in charge of the
Criminal Division? How essential is it? Not in any substantial-
-maybe that is not exactly it, but the court reporter has it, and you can
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or pressure from the Department or other witnesses. Leave the Jencks
Act alone, because it has worked fairly well over the last 22 years.
I will be happy to answer any questions that I can.
Mr. McCLORY. Well, as I understand, you prefer the committee bill,
the bill that Mr. Murphy and I introduced.
Mr. GREENHALGH. Prefer, yes, sir. As to its concept, I suggest maybe
you don't have to pass a separate piece of legislation; especially with,
not your connection, but with your participation in the House Judi-
ciary Committee, I would recommend amendment rules to the Federal
Rules of Criminal Procedure in the first two instances, which is deal-
ing with the mandatory pretrial conference, as well as a proposed new
rule 12.3 dealing with pretrial and trial determinations relative to
admissibility and relevance of evidence as far as the trial judge is
concerned, and then a simple amendment to the interlocutory appeal
to the present 3731.
Mr. MCCLORY. I am concerned about your criticism of the right to
excise parts of a classified material. Certainly, we would want to
excise the names of informants. We would also want to excise certain
other sources and perhaps certain techniques, would we not, because of
the risk that even in an in camera proceeding, the risk of leaks would
be too great to want to utilize that information.
. Mr. GREENHALGH. But if any of the direct testimony were related
to anything in that document, it cannot be excised under existing law.
If it relates in any consideration to direct testimony, it must be pro-
duced. It cannot be excised. That is the thing that bothers me.
Mr. MCCLORY. Well, wouldn't the prosecution, then, be, or for that
matter, wouldn't the defense be frustrated in as far as utilizing that
material either for prosecution or defense purposes?
Mr. GREENHALGH. Well, the prosecution would have to make a com-
mand decision, would it not, to put that witness on the stand, knowing
full well that if the testimony related, production of the documents
must occur.
Mr. McCroRY. Well, maybe the defense wants the
Mr. GREENHALGH. Well, that is my position, yes, sir.
Mr. McCLony. I know, but if the defense wants the information and
material and can't have it available unless parts are excised, do you
feel that he or she should be deprived of the entire document?
Mr. GREENHALGH. All I can say is if it relates it must be produced.
Now, how they are going to manage that, I do not know, based on what
they are attempting to do here, and under present existing pro-
cedures-you see, another thing, Mr. McClory, before you came in,
sir, I really, and especially with your expertise on the Judiciary
Committee
Mr. MCCLORY. It is very limited.
Mr. GREENHALGH. No, really. One thing I mentioned to Mr. Murphy
is. and I haven't seen this case cited in all the documents coming out
of the Department. What is the effect of the Campbell case, Campbell
I and Campbell IT, which provides for the court intervention with
regard to a hearing out of the presence of the jury, as to all aspects of
`these documents, as to are they statements, do they relate, and all
of that.
Now, somewhere down the line, if this legislation is going to be
passed as the Department wants it, the Campbell case, which has been
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on the books since 1961; is going to be vastly affected concerning district
court procedures concerning a Jencks Act hearing, and I really think
you should get some sort of an expression out of the Department as
to how Campbell is going to -fit into all of this with this proposed
exception, because it is a very important case as far as the procedures
are concerned, it is the law of the land in Jencks-type situations, and it
has been decided for 19 years.
Mr. MCCLORY. Do you think the situation the way it is' now is all
right ?
Mr. GREENHALGH. Yes, sir. I think the Jencks Act has worked reason-
ably well for 22 years.
Mr. MCCLORY. You feel there is no need. for any graymail legislation?
Mr. GREENHALGH. No, sir, I didn't say that.
Mr. MCCLORY. No?
Mr. GREEN HALGII. Amendments to rules, amendments to a statute,
and I think that is important. Tigar, Scheminger, and myself,, and I
think Mr. Lacovara to a certain extent indicated that to you.
I appreciate what you have done as far as a separate piece of legis-
lation. It is a very-it is a good, piece of legislation, but it is a little
complicated, Congressman McClory, it is a little complicated, and if
you use the good sense of a fair and impartial district court judge, plus.
a couple of lawyers, the prosecution and the defense, they are probably
going to iron this thing out, assuming mandatory consideration with
regard to pretrial conference and a neiv 12.3 along with-may I con-
gratulate you on the reciprocity provisions in the Murphy bill. I think
that is terribly important under 1~ ,, rdius.
Mr. MCCLORY. Are you saying that the subject could be handled by
amendment of the Rules of Criminal Procedure?
Mr. GREENHALGH. Yes, sir.
Mr. MCCLORY. Without the need for any legislation.
Mr. GREENHALGH. I join Mr. Schininger and Mr. Tigar, and I know
something about the Federal Rules. I have lectured extensively on it,
in fact, very amusingly, to the Attorney General's Advocacy Insti-
tute-I am the only lay person allowed in there. I don't know why. But
I know something about it. And I think it could be handled in a simple-
way on that.
Mr. MCCLORY. How do you feel about degrees of classification?
Do you think that there should be different levels of classified ma-
terial, different standards?
Mr. GREENHALGH. I heard you when you asked that question and I
was of course deeply troubled that you would ask me the same question.
It could present a problem as to an amendment on new 12.3 as to.
subsections as to degree of classification. I honestly-I can't give you
off the top of my head on that. I think that is something maybe the
staff could play with with regard to different gradings as to what
action should be taken as such. I just can't give you a feel for that.
You could probably do it better in your bill, there is no question
about it, but doing it on amendments to the Federal Rules, that may
become a problem. However. I think it is worth looking at.
Mr. MCCLORY. I don't know whether you covered the subject of
interlocutory appeals or not, but do you feel that there should be a
right to an interlocutory appeal with regard to a decision regarding-
classified material?
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Mr. GREENHALGH. Absolutely, absolutely. I say that in my
:statement
Mr. McCLORY. And it should. go all the way to the Supreme Court?
Mr. GREENHALGH. No, I'm-our problem is delay. You have got a
Jury trial, let's say, and something pops up and the prosecution doesn't
like it and they want to go to the fifth floor-let's say it is the U.S.
court over here at third and Constitution-they want to go to the fifth
? floor, it might take a few weeks to get a decision, and then if there is
anything more, up to the Supreme Court, it might even take longer.
Well, you have got, jurors sitting around. We are not even talking
.about wasted resources as to how much money. We are talking. about
recollection as to what has transpired and. all that. It~should be an,
,expedited appeal. I think Mr.. Tigar was 100 percent on it, move it up
as fast as you can and get a decision as. quick as you can. But that,. Mr.
McClory, can be I think a very simple amendment into 3731, which. is
-the Government's right to appeal now. Just drop a :subsection on that.
Mr. MCCLORY. What about reserving, then-if the Government
-doesn't like the decision, should the right be preserved, then, to dismiss
the case?
Mr. GREENHALGH. Oli, sure, but don't they have that as an inherent
right? Isn't that what happened in Mr. Scheininger's case, in ITT-
,Chile?
Mr. MCCLORY. I don't think we are altering that.
I am trying to think whether the converse could arise.
Mr. GREENr3ALGH. Mr. Tigar wanted a defense appeal. Probably I
should be in favor of that, but I am not because then I have appellate
review, assuming a conviction, the whole big ball of wax would be up
there. I don't see any reason to delay it. The Government, yes, under
those circumstances, but not defense 'because of ultimate appellate
review, assuming a conviction.
Mr. MCCLORY. Fine.
Well, thank you.
Mr. MURPHY. Does counsel have any questions?
Mr. O'NEIL. Mr. Greenhalgh, would you comment on the point that
_Mr. Lacovara was making earlier about when some indication of the
importance of the classified information is provided to the court. You
'know, he supports the approach in 4745, where you provide it immedi-
-ately to the court when an in camera hearing is requested, whereas the
subcommittee bill would provide that information to the court only
-after a decision of relevance and admissibility has been made.
Mr. GREEN HALGI-. I prefer your bill, the Murphy bill., to that extent
'because again I would still like to go on amendment to the Federal
Rules of Criminal Procedure where I think that could be worked out,
you know, the good sense as well as the fairness and the impartiality of
'the Federal judge of doing all that. If you -are going to go-if you ask
me how you are going to go, I would say the Murphy approach.
Mr. O'NErr,. What about the suggestion inherent in 4745, the admin-
istration proposal for a higher standard of admissibility when you are
-talking about classified information?
Mr. GREENHALGH. Where did they get this from, Roviaro? What
-does Roviaro have to do with trial? Nothing to. do with admissibility of
'evidence. It is whether or not an informant's identity can be produced
under a bill of particulars under the Federal Rules of Criminal Proce-
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134
dare. It is ingenious but it is incorrect. It has nothing to do with ad-
missibility of evidence.
Mr. Tigar, I think, as I recall-I was sitting in the back of the bus
on August 6, and I thought he came down very hard on that same
point.
Mr. O'NEIL. There are three provisions in the administration bill,
sections 8 (a), (b), and (c) which would amend current rules of evi-
dence; 8(a) would authorize the Government to introduce classified
information into evidence without declassifying it. Presumably that
information or evidence could be sealed and not be made available to
the public. Sections 8 (b) and (c) would amend respectively the rule
of completeness and the best evidence rule.
Could you comment on those three proposals?
Mr. GREENHALGH. I am not sure of all the ramifications of 8(a)..
Would the jury be able to look at that.
Mr. O'NEIL. The jury would; yes.
Mr. GREENHALGH. But no one else?
Mr. O'NEIL. Presumably.
Mr. GREENHALGH. Well, we have all sorts of Gannett problems we-
are developing as far as the trial courts, and if you read Gannett cor-
rectly, of course, the Supreme Court itself was arguing over whether-
it applies either pretrial or trial. Let's talk .about 8 (b) and (c). That's
outrageous. It vastly will affect the Federal Rules of Evidence as to
the rule of completeness as well as the best evidence is concerned.
And again, Mr. Murphy, this gets back to my first argument about
disablement of counsel to perform his or her function in rendering
assistance of counsel. And I understand the great concern of this sub-
committee and in the halls of Congress, but I think we, you know, out
there also is a thing called the Constitution and I think we have got to
pay attention to it.
Anything else, Mr. O'Neil?
Mr. O'NEIL. No, sir.
Mr. GOLDMAN. You mentioned the need for reciprocity, how impor-
tant it is.
What do you feel are the basic concepts underlying reciprocity?
Why is it important?
Mr. GREENHALGH. Oh, I think fundamental fairness with regard
to requiring the production of information at the request of the Gov-
ernment, that the defense ought to have some sort of equal opportunity
to require that from the Justice Department. I think it goes basically
just to fundamental fairness. And I think in terms of talking about
these very complicated, very difficult and very serious cases under
which you have consideration here, it is even more so, probably to a
higher degree, to be as fair as possible.
Mr. GOLDMAN. The committee bill provides for reciprocity, not only
of information which would be used in rebuttal, but also the names
of the witnesses used to bring in that information.
Mr. GREENHALGH. The bill of particulars; right.
Mr. GOLDMAN. Is that second point, the names of witnesses, is that
in your opinion required to make a true reciprocity?
Mr. GREENHALGH. Yes: if you believe in which rule of the Federal
Rules of Criminal Procedure as far as alibi is concerned, under 12.1.
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You do that precisely under 12.1. I see no reason why you couldn't
do it under a new proposed 12.3, to be very analogous to 12.1.
Mr. GOLDMAN. Well, the whole concept of fairness you mentioned
before would be met by the "reverse Jencks" proposal that the Justice.
Department is looking for. Why is that unfair?
Mr. GREENHALGI3. Well, if you want a half hour on why I think:
proposed 26.2 is unfair, which is not related to this proceeding, I.
think-well, first of all, life is very difficult on the defense side any-
way with regard to preparation, that is, interviewing, fact investiga-
tion, getting your witnesses and so forth and so on, and it is even
more difficult with regard to the interviewing process concerning:
tti
th
ge
ng
ose statements.. Many times the interviewers are not as ex-
perienced as he Federal Bureau of Investigation, 'Secret Service,
U.S. Postal Inspector, the DEA agents, as far as taking those state-
ments are concerned.
Second, there are many items in there which lead to other items
which could involve criminality of other people as well as further
criminality of your client.
Now, production of those statements, who are you going to have
looking at that? The so-called fair and impartial U.S. district court
judge who will then see for the first time other implications, and
counsel again is going to have a very serious problem because maybe
he will join the fray under those circumstances, but a lot of us-when
Father Dririan holds hearings on that sometime in the future, we
will be up to testify long and clear on 26.2.
Mr. GOLDMAN. You mentioned in your statement that last year the
ABA took a position with regard to Jencks. The position was that
disclosure should not be required when it involves a substantial risk
of great prejudice to national security and where a failure to disclose
will not infringe the constitutional rights of the accused.
If that language were included verbatim in the committee bill,
thereby meeting at least the organizational concerns of the ABA,
what would you feel as to its effect?
Mr. GREENHALGH. This is only as to pretrial; right?
Mr. GOLDMAN. This would only be as to pretrial but I wasn't sure
from the way you brought it in your statement.
Mr. GREENITALGH. Well, that is true. As to pretrial, I think that is
a sound standard. As to trial, I have very serious doubts, very serious
doubts based on my arguments as to assistance of counsel clause and
confrontation. What I am talking about then is the amendments to
the Jencks Act, which is not contained in your bill, thank God.
Mr. GOLDMAN. Finally, you think these changes ought to be in the
Federal rules. The Jencks Act itself is part of title 18. The Congress
in setting up the Rules Enabling Act set up another mechanism rather
than statutory enactment. If the Congress wants to work its will on a
particular item, such as the rape evidence rule, do you feel that it is
necessary to go through the other processes? Shouldn't Congress be
able to take over a function that it has delegated to another body and
do the job itself, and also keep within its own area any responsibility
for review?
Mr. GREENHALGII. And precisely at this time, for what has happened,`
you all had the wisdom to introduce through Father Drinan H.R. 4712
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which is in effect a, continuation of.the effective date .of the new pro-
posed rules.'of Federal criminal procedure. At this present time,
within the bosom of this building in both Houses, you have jurisdiction
pending concerning proposed new rules, for example, such as 11(e),
proposed 26.2, and another one which is going to very controversial,
44 (c) dealing with multiple representation.
At the same time, it seems to me with Mr. McClory's influence with
regard to judiciary, that could be considered to package.this all at one
time, especially since you have 15 months' time within which to decide
as to the proposed rules themselves.
Mr. GOLDMAN. But in those instances, those are rules that are being
proposed through
Mr. GREENHALGH. The Judicial Conference to the Supreme Court
to the U.S. Congress.
Mr. GOLDMAN. But if the Congress wants to enact direct legisla-
tion
Mr. GREENHALGH. Absolutely.
Mr. GOLDMAN [continuing]. In an area
Mr. GREENHALGH..Do it, assuming, you know, it is good legislation.
Mr. GOLDMAN. But do you agree that Congress. can keep it within
its o yn jurisdiction to review; that the Congress ought to be able to
put a proposal out for review by those outside organizations.
Mr. GREENHALGH. Well, you have given the. public, the bar, aca-
demia an opportunity, through the legislative process, to be heard,
albeit it is a little fast, but anyway an opportunity to be heard, and I
think. if the testimony is there and you are satisfied there have been
full and fair hearings on this, I see no reason why you have to go all
the way back and start the process again because things are popping
up that-you see, these people had three, maybe four witnesses testify,
Federal rules of procedure, Federal rules of evidence, maybe an
amendment to 3731, and it seems to me that would be satisfactory. You
might want to get the Judicial Conference, get Remington's commit-
tee, the Advisory Committee to the Judicial Conference, and Federal
rules of criminal' procedure to comment on that, that might be help-
ful to that extent.
Mr. GOLDMAN. Thank you, Mr. Chairman.
Mr. MCCLORY. May I ask this additional question?
Mr. MuRPHY. Sure.
Mr. MCCLORY. You mentioned Father Drinan and the Federal. Rules
of Criminal. Procedure. He also has pending before him a proposed
new Federal Criminal Code, and one of the questions that arises right
now with us is whether or not such a proposed graymail legislation
should be recommended for inclusion in the new Federal Code or
whether we should act on this independently.
Do you want to express yourself on that?
Mr. GREENHALGH. Well, I wear two hats. I testified representing the
American Bar Association before Father Drinan last Tuesday for 11/2
hours, and it was, for lack of a better word, Congressman, it was fun,
because all eight people, we had a good exchange. All eight people
showed up which is much more than happened in the Senate on Thurs-
day before Senator Kennedy. It seems like there is a great deal more
interest with regard to the House of Representatives.
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I cannot represent to you ABA-wise. Personally I think it could be
-controversial, .and our position is please keep controversial 'things out
so we can get this doggone thing t'hrough:after13 years.
Mr. MCCLORY.? I think that is an admirable position.
Mr. GREEN ITALGI3: And I can-say this personally today as a law pro-
fessor and not as ABA, quote,' Mr., Transcript Reporter, 'not as ABA,;
your bill is better' than the Senate version."
Mr. MCCLORY.On an. unrelated subject, and this might be a.ques
tion out of 'order, L'have been interested in revising-the criminal pen
alty provisions of the'Federal Criminal'Code. I have introduced inde '
pendent legislation, similar to that of Senator Kennedy, to establish a
commission for. making. recommendations . for standard penalties .for;
comparable offenses. I do feel that that ought to go into - .,
Mr.GREENHALGH. Are we talking about the Sentencing COPY mittee?'
Mr. MCCLORY. Yes.
Mr. GREENHALGH. Yes, sir; our position at the ABA tracks.the House
version.-'We would rather see a` group appointed ' by the Judicial -Con-
ference of the United States as opposed to that other ` kind: of action
over there, yes, very much ;so, yes, sir, only that the' guidelines should
be advisory untilwe:know, we gather our empirical data until, we know.
what were doing, and than you may lock them into-legislative, but
lets do~n~'t lock them' first into legislative concrete.
Mr MCCLORY. But 'to handle that independently would be kind of
inconsistent.
Mr. GREENHALGH It would be a mistake. .
Mr. MCCLOIRY. We should work to bring conformity and order:
Mr. GREENHALGH. Right. It is a- very-the sentencing .provision-
you- see, you are recodifying, this Congress is historic to that extent,
the first time in 200 years Federal criminal law, and let's do it com-
prehensively as best we can. And I think the sentencing committee or
its concept or whatever the entity, is a terribly .essential part and it
should remain in..
Mr. MCCLORY. Thank you very much.
Mr: GREENHALGH. My pleasure.
Mr. MURPHY. Thank you, Mr. Greenhalgh. We appreciate your testi-
mony. It was most enlightening, and I'm.sorry for the couple of inter-
ruptions.
Mr. GREENHALGH. Well, that's all right. Thank you, sir.
Mr. MURPHY. Thank you.
Our next and last witness this morning is Mr. Otto Obermaier, a
member of the New York law firm 'of Obermaier, Marvillo, Abramo-
witz & Fitzpatrick. Mr. Obermaier appears before us today' to repre-
sent the Association of the Bar of the City of. New York. We appre-
ciate your traveling to Washington today, Mr. Obermaier, and we
we] come you.
[The prepared statement of Mr. Obermaier follows:]
PREPARED STATEMENT OF OTTO G. OBERMAIER.
Mr.,Chairman and Members of the Subcommittee on Legislation of the Pema-
nentSelect Committee on Intelligence : I am gratified to be here today, at the
subcommittee's invitation, to present the views of the Committee on Federal
_H.R$4736n("of the Classi ("Classified mation Criminal Trial 1 Procedures Act") concerning
and H.R.
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4745 ("Classified Information Procedures Act"). Within the Association of the
Bar, the Committee on Federal Legislation is charged with responsibility for
developing and presenting the views of The Association on proposed federal legis-
lation of a diverse nature. It is for the purpose of presenting the Association's
position on the two bills before this Subcommittee that I appear here today.
The concept of establishing a special procedure for a particular type of criminal
case or one involving a particular type of subject matter is dangerous. The
criminal process attempts to establish a balance (precarious in the view of some)
between the accused and the prosecutor. Altering one aspect of the system may
have an impact, sometimes : unintended and unexpected, on other .parts of the
system. T'he,'dangers, are -multiplied when. the ,specialized subject matter is na-
tional security with its concomitant focus on secrecy. Criminal trials involving
-ex parte proceedings, appeals during the course of the trial, substitutions for the
-,actual words of documents, special rules for dealing with classified information
are all procedural innovations with which we have limited experience.
Our Committee is by no means convinced that prosecutions involving classified
information call for a radical alteration (or even any alteration) of the criminal
:process. We would have ordinarily preferred leaving the matter to be dealt with
by the Federal Rules of Criminal Procedure and the sound discretion of district
'court judges. And this remains our preference.
However, we recognize the substantial feeling in Congress and the Department
,of Justice that the problem requires specialized legislation.
If there is to be legislation, we do not oppose legislation establishing manda-
tory pretrial proceedings (so long as the duties placed on the defense and prose-
cution do not upset the delicate balance of the criminal process as a whole)
interlocutory appellate review, and uniform procedures safeguarding classified
information by the courts and the parties. And with the. reservations expressed
hereinafter, we.do not, oppose mandatory notice by, the defendant of, his or her
intention to disclose classified information during the course' of, and in connec-
tion with the proceedings. Of the two bills before this subcommittee, we prefer
the approach of H.R. 4736. In our view it establishes a fairer balance between
the competing interests of the accused and national security in the context of
the criminal process.
Our major concerns are the following :
First, our Committee opposes the provision in Section 10 of H.R. 4745 which
would amend the Jencks Act, 18 U.S.C. ? 3500 in a particular way with respect
to classified information. H.R..4736 contains no similar provision. While the
Senate bill, S. 1482, contains a similar provision, one of the sponsors, Senator
13iden, has stated that he.is not inclined to favor the provision but has left the
provision in the bill for the purpose of prompting discussion during hearings.
(Cong. Rec. July 11, 1979, daily edition S. 9184). The proposed provision would
substantially impair the Jencks Act for national security cases. In the view of
many, the Jencks Act as presently existing, is already far too restrictive by man-
dating disclosures only after the witness testified. To compound- the already
existing ;inherent ..difficulties by allowing.deleti'ons or, substitutions in place of the
actual'words of the witness seems unwarranted.
Moreover, experience has shown that it is not the judiciary's role to determine
whether a particular prior statement of the witness' is inconsistent with. the
witness' testimony. Dennis v., United States, 384 U.S. 855, 874-75 (1966). There
should be a substantial reluctance to'depart from the process of leaving to the
trial, judge, applying rules of evidence, the decision whether prior statements of
the witness contained in the Jencks material should be part of the evidentiary.
proof.
Second, we oppose the provisions in Section 202 of H.R. 4736 which would
require detailed reports to particular committees of the Congress when prosecu-
tion is declined "because there is a possibility that classified information will
be revealed." We are unaware of a similar reporting in any other criminal con-
text. The decision to prosecute remains the decision of the Executive. Nor are
we convinced that there exists a problem of sufficient dimension to require the
new procedure proposed. In the instances (rare, we hope) where Congress or
its committee believes "oversight" of the prosecutorial declination is necessary,
it can attempt to obtain the information informally from the Department. And
failing that, Congress could ask. a court to release grand jury proceedings to
it. The grand jury is an arm of the court; the prosecutor is merely, its legal
adviser. Such a request would, allow the courts to take into account the linterest-
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of any purported accused not to have publicly revealed that he or she was under
potential criminal indictment.
Third, consistent with our concern that the criminal process not be further
tipped in favor of the prosecution, we urge that the disclosure obligation placed
on a defendant be accompanied by a requirement for reciprocal disclosure by
the prosecution. As the Supreme Court said in Wardius v. Oregon, 412 U.S. 470,
473 (1973) : "* * * the ends of justice will best be served by a system of
liberal discovery which gives both parties the maximum possible amount of
information."
Section 107 of H.R. 4736 provides that whenever a defendant is required to
disclose particular aspects of his defense, he is entitled to have the prosecution
detail related aspects of the prosecution's case. If the court sustains the defen-
dant's right to use classified information, the defendant is entitled to be advised
of the prosecution's rebuttal to the information. H.R. 4745 provides no reciprocity
provision whatsoever although Sections 5 and 6 require disclosure by a defendant
concerning his or her intended use of classified information.
Fourth, we applaud the requirement in Section 201 that criteria be established
for initiating prosecution. The establishment of such criteria will have two bene-
fits. First, they will limit the presently unbridled discretion of the prosecution ;
and second, they will result in greater notice to potential defendants. The estab-
lishment of such standards has been suggested by Professor Kenneth Culp Davis
in his book, "Discretionary Justice" (1969) at page 225. The guidelines which
are promulgated should be publicly available, as, for example, by being published
in the Federal Register and the legislation should so provide.
On the whole, of the. two bills before the subcommittee, we favor H.R. 4736.
We make the following suggestions for improving H.R. 4736:
We favor the definition of classified information contained in section 2 of
H.R. 4745. The major difference bewteen the two bills is that H.R. 4745 does not
contain the phrase "or information denied therefrom" now contained in Section
113 of H.R. 4736, which in our view is both unnecessary and substantially
vague.
We also believe that the definition of classified information should be contained
in the first few sections of the Act.
With respect to Section 107(c), we think the words "bill of particulars" are
unnecessary and more limiting than desirable. The law that has arisen surround-
ing Rule 7(f), Fed. R. Crim. P. allows a bill of particulars to be very limited.
There are many ways that the information can be conveyed other than by a bill
of particulars. We would also urge the elimination of the requirement that the
defendant be required to request such information.
On behalf of the Committee on Federal Legislation, I am deeply grateful to
the Subcommittee for permitting me to express these views.
STATEMENT OF OTTO OBERMAIER, ESQ., OBERMAIER, MARVLLO,
ABRAMOWITZ & FITZPATRICK, REPRESENTING THE ASSOCIA-
TION OF THE BAR OF THE CITY OF NEW YORK
Mr. OBEIIMAIER. Thank you, Mr. Chairman. It is always a delight to
come to Washington, particularly on a gorgeous day like today, and
particularly to assist in the legislative process.
The association of the bar, particularly the Committee on Federal
Legislation, represents a cross section of the practicing bar in the city
of New York, and I am here as the spokesman of the Committee on
Federal Legislation to give the committee our thoughts, somewhat
rushed over the summer months, on the two bills pending before the
committee, one referred to as the administration bill, H.R. 4745, and
the other the committee bill, H.R. 4736.
I have prepared a statement which I have circulated and given to
the staff of this committee, and which I would like to have included in
the hearing record. I would like to take just a few minutes, to sum-
marize it and perhaps to conceptualize some of the ideas contained
in it.
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The Committee on Federal-Legislation is not at all convinced that
separate and specific legislation is required to deal with this problem.
There is a strong feeling in this committee and the Department of
Justice that legislation is'-required. If there is to -be legislation; we
would favor this committee's bill, H.R.'4736.
Mr. 'MCCLORY. Is there pending. before the Judicial Conference
a recommendation for amendments to the Federal Criminal Rules
which would obviate the need for this kind of legislation?
Mr.`OBERMMAIER. That I don't know. I don't have any input as to
whether-to my knowledge there have not been published for com-
ments to the bar: Any proposed amendments to the Federal Rules of
Criminal` Procedure which would deal with this problem.
Normally they are promulgated for comments to the bar if they are
made ..by. the Judicial Conference or by one of the Advisory Commit-
tees..,
Mr. MCCLORY. But you are convinced that by- amending the Federal
Rules of Criminal Procedure we could accomplish the same thing and
we wouldn't need this legislation.
Mr. ORER11AIER. Well, I think it is possible to do that, as Professor
Greenhalgh has testified here, and possibly an amendment to one of
the sections contained in title 18.
I think where the committee that I speak for comes out is basically
'that we ought to leave this matter to the discretion of the District
Court judges and the wisdom of the prosecutors and the defense bar to
work the problems out. But short of that- and I think there is a strong
feeling that something ought to be done-I don't know if we necessarily
come strongly in behalf ' of amending the rules as opposed 'to enacting
this committee's bill. I don't know where we come out there.
We are troubled-let me just shift a little bit to the conceptual prob-
lems-we are troubled by the 'procedural innovations that would be
created under I suppose -either one of the bills before the committee,
and maybe the amendments to the rules and the statute.
Interlocutory appeals, ex parte proceedings, the substitution of
something else for the original words of the document are all concepts
that are not totally familiar to the criminal process and some might
even say alien to it. Those are problem areas. It doesn't mean some-
thing shouldn't be done.
I think what we say is we alert the committee to the fact that we
haven't had an awful lot of experience with some of these items. From
a criminal practitioner's point'of view, ex parte proceedings scare the
dickens out of you because as a defense lawyer, you are hardly ever
party to them when the prosecutor has them with the court.
'An interlocutory appeal, once the Jury has been sworn, is a concept
that I have no personal'experience with. I don't think any members of
the New York Bar do. I understand that there is a provision in the
D.C. Code that permits interlocutory appeals once the jury has been
sworn, that is, appeals during the course of the trial, and I don't
know how that has worked out. It is not something-I guess the final-
ity rule in the Federal courts has been around roughly since, the Judi-
ciary Act of 1789, and I suppose we should always learn from our past
experiences, and maybe'this is a good innovation. I would suspect it
would cause tremendous problems.'But I don't have any experience,
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and I don't think our committee can speak to the question of what its.
practical impact would be.
All we. say, and we alert the committee, I think, to the idea that.
the need for specialized legislation always seems to arise with respect
to any criminal trial that is currently in vogue. I mean, there is no.
reason why we shouldn't have specialized legislation, I suppose, for
narcotics trials. This committee believes specialized legislation is
necessary for classified information and national security cases. I
don't know whether that is always good, and I think that is basically-
where the committee comes out.
Let me focus just briefly on the legislation itself. We' applaud the'
committee for its inclusion in the bill of a provision that requires the'
Department of Justice to specify the factors' and guidelines neces-
sary to be considered in arriving at a decision to prosecute or not to~
prosecute. The unbridled and unregulated discretion of the prose-
cutor is a factor that has been focused on by some people-I think
in my prepared statement I quote Professor. Davis in his book "Discre-
tionary Justice" where he says that this is clearly a feature which
should be required of the criminal process as a whole.
We do not believe that the committee's oversight provisions which
would require mandatory review of every decision not to prosecute,.
as the committee bill requires are desirable. We think this is unpre-
cedented and I am not sure is necessary in order to provide the com=
mittee with some idea as to what is going on in the enforcement of
our criminal laws. So I think we basically say that we are not sure
that that ought to be included and probably oppose that.
We believe the committee's provisions on the reciprocity of the
information required to be disclosed during one of these prosecutions
is good. We oppose the amendment of the Jencks act which 'is con-
tained in the administration's bill for reasons that are'not all that
different from those of the other people who have spoken here with
respect to-that.
On the more mundane items, I think we'believe that the definition
of classified information in the administration bill is somewhat
better. We believe, in section 107 of this committee's bill that there
would be no reason to tie the disclosure required by the prosecution
to a bill of particulars, language which has its origin in rule 7(c)
of the Federal Criminal Rules but which as .a matter of practice is
quite limited in what may be contained in them. We believe that there
are many other ways to provide the information, and there would
be no reason to limit the disclosure to that type of document.
Again, I want to thank the subcommittee for the opportunity of
allowing us to come down and contribute to the legislative process by
hearing our comments on the two 'bills pending before the committee.
Mr. MCCr oriY..'You stated earlier, as I understood it, that perhaps it
might be better to leave the situation the way it is and let the trial
courts make their determinations and handle these, I assume, on a case
by case basis. But of course the reason we.ht.tve.t'his before.us is because
of!the sort of Public.criticism we have heard. Prosecutions have not
been-brought and some cases have been dismissed because defendants
have claimed that the only way they could get a fair trial was to make
public classified information. The Government then, being fearful of
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that, had seen fit either to not prosecute it or to dismiss. That is an
unsatisfactory position for the law at the present time, and that is the
reason for the interest in this type of legislation.
Now, I am very interested in the proposition that this might all be
handled by amendment of the Federal Rules of Criminal Procedure,
but I don't, know whether that would satisfactorily answer what we
regard as an existing deficiency in the laws.
I assume that, especially with regard to.the,measure that was intro-
duced by Mr. Murphy and me, except, with regard to some details, you
wouldn't have strong objection to that legislation.
Mr. OBEr,31AIER. No, sir, we would not have strong objection.
Mr. MCCLOr.Y. And that would provide an answer in the absence of
fulfilling the need through amendments to the Federal Rules of Crim-
inal Procedure.
Mr. OBERDMAIER. Yes, sir, except let me just add one thing. The leg-
islation, as I understand it, would simply add additional procedural
requirements before the ultimate decision would be made as to whether
to prosecute, in the first instance, or whether a case would be dismissed
in the second instance. The question you posed to me, or at least the
statement that you made to me about the need for the legislation was
that some defendants have said their right to defend themselves re-
quires the disclosure of public information, and some prosecutions
have not been brought. That question, taken as a whole, would still be
answered'the same way, even with the legislation. Namely, if the ulti-
mate conclusion were that a man could not defend himself properly
without disclosing this information, the same decision would still be
made: namely, either the Department would continue to prosecute or
the prosecution would be dismissed. The additional procedural innova-
tions that this legislation requires simply make sure that more people
participate in that process before the decision is made, but the decision
remains ultimmately the same one.
There are proposed procedural innovations, interlocutory appeals,
maybe four judges. will now consider the admissibility of testimony as
opposed to a?single one.
So I think all I am trying to focus on is the ultimate societal decision
will always be the same, may not be made the same, but it always will
be the same, even with this legislation. And the legislation simply
wants to make sure, as I understand it,, that other people participate
aside from a single District Court judge, and under some provisions,
other people,other., than the Department of Justice, namely this com-
mittee.
I kind of used your question as a springboard
Mr. McCr,orv. Well, as I understand it, there is not an existing
mechanism for exhibiting classified material in camera with the oppor-
tunity for the judge to determine whether or not the evidence is
relevant and admissible in connection with the prosecution or defense.
So our bill would provide the mechanism for making this deter-
mination.
There are no more parties involved, but the involvement of the
existing parties in the process is being changed.
Docs that weer correct?
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Mr. OBERM AIER. I think that's correct. The procedures which I view
.as inherent in the court to deal with the problem are now made ex-
,~plicit by either one of these bills or amendments to the rules.
You know, we have had substantial prosecutions involving classified
:material prior to this legislation. There have been treason trials in
New York and
Mr. MCCLORY. I would be interested in this, if you feel that the
need could be filled by amendments to the Rules, that someone prepare
and introduce the proposed changes in the rules that we might consider.
.1 suppose we could contact the chief justice and the judicial conference
and make such a suggestion to them.
I am not too interested in cluttering up the statute books with
;procedural material which might better be handled by a rule of court.
Mr. OBERMAIErR. I will certainly go back to the Committee on Fed-
eral Legislation and see what position they reach and notify the
committee, this subcommittee as to what they arrive at.
Mr. MCCLORY. Thank you.
Mr. MURPHY. Questions by counsel ?
Mr. O'NEIL. Mr. Obermaier, you have heard the discussion by both
.Mr. Lacovara and Professor Greenlialgh concerning the appropriate-
ness of providing statements having to do with the sensitivity of the
classified information at a particular point in the process at which the
court makes a series of decisions. And you .have,also .heard Professor
+.Greenhalgh address the issue of whether there ought to be a higher
standard of classified information when it is sought to be introduced
or used by a defendant.
Would you address those two issues?
Mr. OBERMAIER. Well, if I understand the first issue, the question
pis when is the District Court judge informed of the security classifica-
ction with respect to the material.
Mr. O'NEIL. And the fulsomeness of why it is so sensitive.
Mr. OBERMAIER. I would probably come out on the side of Mr.
'Lacovara on that issue, namely, we must have confidence in the ability
.of our District Court judges. Whether we tell him this is top secret
.or. secret at the commencement or at the end, in my view, is not some-
thing that should necessarily affect the decision of men who are Dis-
Ftrict judges.
Could you pose the second inquiry again?
Mr. O'NEIL. The Administration has suggested that there be a
Ihigher standard of admissibility
Mr. OBERMAIER. Oh, yes.
Mr. O'NEIL [continuing.] For classified information. Essentially
they equate it with the Roviaro standard.
Mr. OBERMAIER. I think I would probably come out on Professor
Greenhalgh's side on that controversy. There should be no difference
in any way with respect to the type of classification of the
information.
Mr. MURPHY. Thank you, Mr. Obermaier. I appreciate your com-
ing down from New York today, and the committee, on behalf of
Mr. MCClory and myself and Chairman Boland, who had to be away
,6.today, thank you very, very much. We appreciate it.
Mr.'OnJui rAn R. Thank you, very, very much.
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Mr: MURPHY. The committee will stand 'in recess until 1 o'clock
this afternoon.
[Whereupon, at 11:37 o'clock a.m., the subcommittee recessed, to
reconvene at 1 o'clock p.m. the same day.],
AFTERNOON SESSION
Mr. MURPHY. The afternoon session of the Subcommittee on Leg-
islation of the Permanent Select Committee on 'Intelligence will come
to order.
Our first witness this afternoon is no stranger to this committee,.
Mr. Daniel Silver, general counsel of the Central Intelligence Agency.
When you last appeared before us, Mr. Silver, yo'u'were general'.
counsel of the National Security Agency. The NSA's loss has 'been.
the CIA's gain.
Mr. SILVER. Thank you, sir.
Mr. MURPHY. -Congratulations on your new position, and welcome-
to the committee again.
STATEMENT OF DANIEL SILVER; ESQ., 'GENERAL COUNSEL,.
CENTRAL INTELLIGENCE AGENCY.
Mr. SILVER. Mr. Chairman and members of the committee, I am
grateful for the opportunity to testify on behalf of the Director of'
Central 'Intelligence and the Central Intelligence Agency- concerning
proposed legislation to establish- certain pretrial and trial procedures
for the use of classified information in connection with criminal cases,
the so-called graymail legislation. My remarks today will be keyed
primarily to the provisions of H.R.. 4745, the proposal submitted on:
behalf of the administration. I wish to make it-clear at the-outset,
however, that in my view the differences among the two House'bills,
and the Senate bill, S. 1482, are of much less importance than the
common features of the proposed legislation. Enactment of any one,
of these measures would be a significant improvement of the situation,
that exists today.
The problems posed by criminal cases in which classified informa-
tion is involved are a constant and, I believe, a growing area.'of con-
cern for the intelligence community. You have heard testimony from,
Assistant Attorney General Philip Heymann and from representa-
tives of the criminal defense bar and civil 'liberties' groups. They rep
resent the concerns of those who deal with such~cases in the courtroom..
I would like to bring you the perspective' of the intelligence commu-
nity, whose primary responsibility in these cases is to protect classi-
fied intelligence information. from disclosure. Typically, the intelli-
gence community involvement in such ' cases is behind the scenes..
Because it is out of the public view, the intelligence community role,
is often misunderstood.:and; invested' with a supposed omnipotence
that is far from real. My own experience with this class of case has:
been gained:both'as General Counsel of the'National Security Agency
and`an:my.present,position. My predecessor as General Counsel of, the
Central Intelligence Agency. Mr. Anthony Lapham, will also testify
this afternoon. The committee is. fortunate to have: the benefit of his:
insights, derived from. extensive' experience with the practical prob-
lems posed by this kind of criminal case.
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It is evident, at least it was evident before this morning's testi
mony, that the idea of graymail legislation, and the broad lines of the
bills that have been. introduced, command rather wide support
throughout the Government, the private bar, and civil liberties groups.
This fortunate phenomenon stems at least in part from different per-
ceptions as to what kind of criminal prosecution will be facilitated
by the legislation. There are some who feel that improved procedures
? in criminal cases involving classified information will make it easier
to prosecute intelligence agency employees and other Government
-officials. From my vantage point, I think there are far fewer legitimate
prosecutions that could be based on past intelligence agency conduct
than the more vociferous critics of the intelligence community pro-
fess to believe, and I am confident that current standards of conduct
within the intelligence community are such as to create no. real likeli-
=hood of prosecutions based on current activities.
Nonetheless, in any case that is contemplated, or. before the courts
at present, or that may arise in.the future, I want to emphasize that
,it would be entirely contrary to the policies and principles of the Di-
rector of Central Intelligence, and to my own, convictions and prin-
ciples, to use national security claims as a strategem to prevent or
impede the criminal process for purposes of protecting any Govern-
ment official. On the contrary, it is clearly our responsibility, and I
'believe ultimately in the best interest of the intelligence community,
to have a full and fair adjudication of any serious allegation of crimi-
nal conduct by Government officials, especially those within the in-
telligence community.
On the other hand, the paramount responsibility of the Director of
Central Intelligence is to insure that this country has a strong and
effective intelligence system. To this end, it is indispensable to protect
intelligence sources and methods from public disclosure for all but
the most compelling reasons. Where a criminal prosecution involving
-classified information threatens to expose sensitive intelligence source
and method information, it is the duty of the Director of Central In-
-telligence, and of the intelligence community agency heads and gen-
eral counsels, to seek as vigorously as they know how to portray to the
Department of Justice, the Attorney General, and, if necessary, to the
President, the risks to national security that would arise froni dis-
-closure of such information, even if that means the dismissal of the
prosecution is the result. I make no apologies for CIA's performance
of this role, nor for the fact that in certain cases the need to protect
sensitive intelligence information has been determined to outweigh the
interest in successful prosecution of crimes. I can assure the committee
that such decisions are not made unilaterally by the Director of Cen-
-tral Intelligence, nor by the Agency, nor does the CIA engage in con-
cealment of information from the Justice Department. When the
Agency objects to the use of sensitive. information in the criminal
prosecution process, we are careful to inform the prosecutors precisely
what is at issue. Typically, there is vigorous debate, frequently leading
to resolution only at the highest levels of the Jutice Department or, on
-occasion, of the executive branch.
In the present state of the law, every criminal case in which classi-
fied intelligence information may be involved tends to become a source
,of painful confrontation between the affected intelligence agency and
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the Criminal Division of the Justice Department. Frequently these are-
cases in which the intelligence agency has no interest or involvement
other than as a source of potentially relevant information. Contrary
to some depictions, a significant number of recent graymail situations
have not been prosecutions or contemplated prosecutions of Govern-
nment officials or of private parties having some relation to the intelli-
gence community. Rather, they have been actual or contemplated
prosecutions under the espionage laws or in areas unrelated to intelli-
gence activities in which classified information somehow is brought
into the picture. Because, there is currently no way to determine with
precision how the courts in such cases will handle discovery questions,
concerning' the relevance, and -admissibility of. evidence or the Govern-
ment's desire to limit the disclosure of sensitive information, the De--
partment of Justice exerts great pressure' on the, intelligence agencies
involved to declassify or to agree to make available for use at trial.
nearly all information related to the case. 1j7hile the reasons for such
pressure, to insure against the sudden collapse of a case at trial, are
understandable, the current process is not always conducive to rational,..
orderly decisionmaking.
And I might add parenthetically, departing from my prepared"
statement, that I would say it is almost never conducive to rational,..
orderly decisionmaking because so many of these decisions have. to be-
made on a very short time fuse in the course of trial or on the eve,
of trial.`
The great advantage of the proposed graymail legislation from my
point of view is that it should bring about a substantial reduction of
these painful and often unnecessary confrontations between the in-
terests of criminal law enforcement and the protection of intelligence
sources and methods, by clearly establishing the power of the courts-
to employ procedures that will bring a measure of certainty and pre--
dictability to the prosecutorial decisionmaking process.
The legislation will do this in a number of ways, the most important-
of these being the establishment of procedures for prior notification
of intended use of classified information, early determinations of the--
relevance of information, and interlocutory appeal by the Government
of adverse trial court rulings on these issues. In this way, the threat--
ened exposure at trial of information that in the end is not relevant or-
admissible would not prematurely cause a prosecution to be aborted. I
will not dwell on the provisions which authorize these procedures,.
found in sections 5 through 7 of the administration's bill, since they-
have been covered extensively in prior testimony.
In addition to creating a procedural framework for an orderly de-
termination of what sensitive information will be needed to support a
prosecution, a second major salutory feature of the proposed -leg-
islation is that it provides'nneans by which classified information that
is necessary and relevant to the conduct of the criminal case, whether-
from the prosecution or defense point of view, can be used in some cir-
cumstances without threatening a, damaging public disclosure of sensi
tive intelligence information. Unlike H.R. 4736, both the administra--
tion's bill and S. 1482 contain provisions that would remedy
troublesome problems which now confront: the Government during-
the actual introduction of classified evidence at trial.
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For example, section 8 (a) of H.R. 4745 provides that documentary
evidence may be admitted at trial without change in its classification
status. This would permit the Government to introduce a document
classified secret as it is, with no requirement for formal declassification
or removal of classification markings. In the past, CIA and other en-
tities of the intelligence community have been called upon by the De-
partment of Justice to declassify various documents said to be needed
to support a prosecution. If such documents are validly classified, how-
ever, it makes little sense to call for their declassification simply be-
cause they will be used in some fashion at trial. Declassification necessi-
tates a finding that public disclosure will not harm the national
sceurity, a finding at odds with an essential element of the crime unde`r'
many of the espionage laws.
Furthermore, the rules on classification do not require that a docu-
ment be declassified in order to be shown to a limited number-of un-
cleared users, if circumstances make it in the interest of national se-
curity to do so. As Admiral Turner said when he testified before the
Secrecy and Disclosure Subcommittee of the Senate Select Commit-
tee on Intelligence in March 1978, the use at trial of a validly classi-
fied document "merely recognizes the situation for what it is, namely
one in which a national security risk is being taken to achieve a law
enforcement purpose that cannot be achieved in a risk-free way."
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 called for, such a document would be subject to continued protec-
tion under the security procedures called for by section 9 of the
bill.
Section 8 (b) provides the court with authority to order the exci-
sion of all or part of the classified information contained in a docu-
ment 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 in evidence. As Assistant At-
torney General Heymann pointed out when he testified before the
committee last month, the Government was able to delete some sensi-
tive classified information from the highly classified manual that was
introduced in the Kampiles espionage prosecution because the de-
fendant gave his consent. Section 8(b) would allow the court to order
such deletions over a defendant's objection in a situation where the
deleted information is not relevant and material to the person's
defense.
Section 8(c) would permit the Government to prove the contents
of a classified document without actually introducing the original or
a duplicate into evidence. By allowing other evidence, such as testi-
mony, to prove the matters for which the document would otherwise
be admitted into evidence, the subsection will. enable the Government
to protect some classified information in the document from unneces-
sary disclosure. This provision could be particularly useful in a case
under 18 U.S.G. 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 seems
particularly tragic that the Government has to disclose publicly the
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very, information it has prevented the defendant from. passing to
a foreign power. By relying on testimony to prove that the par-
-ticular documents involved are related to the national defense, the
Government could minimize the damage to the national security that
.might otherwise be incurred through introduction of the documents
in evidence.
Through testimony, the Government, would be able to focus on spe-
.cific matters of its choice to prove that a' given document relates to the
national defense, without exposing the entire document at public trial:
Classified photographs are a type of documentary evidence for which
.subsection 8(c) would seem particularly well, suited. The defendant
would be free, of course, to cross-examine in detail on any matter put
in evidence by the Government, or to introduce. classified information
-on his own behalf if notice has been given under section 5 and the pro-
~cedures established by section 6 have been followed.
The final provision in section 8, subsection (d), permits the Govern-
ment to object during the examination of any witness to a question or
line of inquiry that may result in the disclosure of classified informa-
tion that has not been found previously to be admissible pursuant to
the procedure established by section 6. This provision is necessary in.
-order to make it clear that the Government has a right to prevent the
intentional or inadvertent premature disclosure of classified informa-
tion at trial, by permitting the Government to object and obtain a rul-
ing from the court on the appplicability of the in camera procedure
-established by section 6.
Other provisions of the bills are of importance to the intelligence
-community. Section.9 of the administration's bill calls for establish-
ment of security procedures by the Chief Justice of the United States
in consultation with the Attorney General, Director of Central Intel-
-1igence, and Secretary of Defense, to protect classified information sub-
to the Federal courts. Both H.R. 4736 and S. 1482 contain sim-
ilar provisions. The security measures listed in section 4 of the adminis-
'tration's bill are suggested as guidelines pending the establishment of a
more specific procedure by the Chief Justice.
The CIA views the security procedures required by all three bills as
a necessary and valuable part of the procedural framework established
'by this legislation. Under the administration's bill, for example, classi-
fied 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. In the prosecution of former CIA
employee Edwin G. Moore for attempted espionage, the Government
'introduced classified documents which contained the names of CIA
employees under cover. There was no cross-examination on these docu-
ments, and the court ordered that protective measures be taken during
and after trial, which prevented the names of the undercover employees
from reaching the public domain. The establishment of uniform pro-
cedures to provide such protection, in all cases will be more reassuring
-and welcome.
Classified information would be submitted to the court by the
Government ex parte under section 6 of H.R. 4745 to demonstrate to
the court that an in camera proceeding. concerning relevance is war-
ranted. It. is contemplated that some such submissions would involve
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disclosures of classified information to the court in greater detail than
that which would be necessary for trial. Such submissions will call for
the highest degree of protection. After the in camera proceeding and
the court's rulings on relevancy and admissibility, there is the possi-
bility of appeal by either or both the Government and the defendant.
In such situations, the documents involved 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 risk of inadvertent disclosure
or loss'of classified materials unless there are uniform and strict pro-
cedures to guard against such occurrences. Fortunately, the Foreign
Intelligence Surveillance Act of 1978 has broken the ground in this
area. Under FISA, the Chief Justice, in consultation with the Attor-
ney General and the Director of Central Intelligence, has promulgated
security procedures that effectively safeguard the classified informa-
tion involved in applications to the FISA court. I am confident that
similar effective procedures will be established if this legislation is
enacted.
In closing, I would like to thank the committee for this opportunity
to prevent the views of the Director of Central Intelligence and the
Central Intelligence Agency on this important legislation, and to
commend the committee for its efforts to find a solution to the legiti-
mate and painful problems that arise when sensitive intelligence
information is drawn into the prosecution of criminal cases. I believe
H.R. 4745 contains the elements of a sound and equitable solution to
the graymail problem, as do the similar bills before you. If this legis-
lation is enacted, I am confident that the Director of Central Intelli-
gence, 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 'ensuring effective and impartial,
enforcement of the laws and a fair trial for every defendant.
That concludes my prepared statement, Mr. Chairman. I will be
glad to answer any questions.
Mr. MURPHY. Thank you, Mr. Silver. As usual, a fine presentation.
A question I had, and it relates to the testimony this morning of
Mr. Greenhalgh. You say that in the Moore case, the Government
introduced classified documents which contained the names of CIA
employees under cover. There was no cross-examination on these
documents and the court ordered that protective measures be taken
during and after trial which prevented the names of the undercover
employees from reaching the public domain.
Mr. Greenhalgh stated that one of the fundamental rights under
the Constitution is the power of cross-examination, and I am wonder-
ing in this particular set of facts, was this right prevented or taken
away from the defendant?
Mr. SILVER. I would have to defer to Mr. Lapham to answer that
question since he has, I believe, the firsthand experience with that
situation.
Mr. LAPHarz. The answer, Mr. Murphy, is no ; there were no steps
taken to restrict or in any way obstruct the right of defense counsel
in that case to conduct a cross-examination. He chose for tactical
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reasons not to examine with respect to the document, presumably for
the reason that he thought the examination would make his case worse
rather than better. So it was a stroke of good fortune, and indeed
many of these cases have turned out to stand or fall on strokes of good
luck.
Mr. MURPHY. Thank you.
Mr. SILVER. I cited the case in this portion of my statement as a
.example of a situation in, which it is necessary to have...rigorous,secu-
? city procedures to protect the documents because they will contain,
often do contain information that has not been made public.
The more general issue that you allude to I think is not a real
issue. What the administration bill proposes in terms of deletions of
information from documents should not effectively deprive any de-
fendant of the right of cross-examination. I think one has to start
with the proposition that since the Government bears the burden of
proving the defendant's guilt beyond a reasonable doubt, the Gov-
ernment should be able to choose the elements of its proof. Obviously
anything that is introduced into evidence is fair game for cross-ex-
?.amination, but in a case where one has potentially 100 items of clas-
sified information and, chooses to base a prosecution on 50, be they
.separate documents or discrete items of information within a single
document, I don't see any reason why cross-examination should be
permitted to proceed on fifty items that the Government is not
putting into evidence, and in a case, if one had a case where the identi-
ties of undercover employees were not relied upon by the Government
as an element proving the national defense or classified nature of the
documents, it seems to me that there is no infringement on the right
,of cross-examination if the court rules that that is outside the scope
of that examination.
Mr. MURPHY. Mr. Ashbrook?
Mr. ASHBROOK. Thank you, Mr. Chairman.
Title II of H.R. 4736, as well as the Biden bill, contains provisions
-requiring the Justice Department to promulgate guidelines specifying
the factors to be used in deciding whether to prosecute a case or not
where national security information may be disclosed. It also requires
-the Justice Department to submit written findings to this committee
when a decision not to prosecute is made.
Would you give us your full review and expertise on this particular
provision?
Mr. SILVER. I would oppose that position on two grounds. First,
I think there is a serious separation of powers objection to any pro-
vision that requires the executive branch to report regularly on an
item-by-item basis to the Congress on its decisionmaking process.
I certainly recognize the legitimate oversight roles of the Congress in
.calling the Justice Department to question, seeking further informa-
tion on-how these decisions are made generally or in any particular
case, but I think that a requirement as set forth in title II of that
bill is an unwarranted intrusion into the management and decision-
mal:ing prerogatives of the executive branch.
Second. I think it would be ineffective to acomplish whatever end is
,sought to be accomplished. Certainly I have had occasion myself to take
exception to prosecutorial decisions or nonprosecutorial decisions that
the Justice Department has made in various kinds of cases, but I
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don't think those decisions would have changed one whit if the Depart-
ment had been required to file with the Congress an explanation of
why they were made, nor if they had been required to promulgate
,guidelines. These are all ultimately questions of judgment, prosecu-
torial judgments as to how strong a case there is to take before a jury
.or how strong a case there is to start an investigation, and I'don't
think that the act of having to articulate the reasons will necessarily
,change the decisionimaking? process .-within the, Justice Department
at all.
Mr. ASUBROOK. Well, separating it into two parts of that question-
.the first part, of course, is the guidelines-I, speaking as a legislator,
have seen numerous examples. Take the McGovern amendments on
immigration where it appears to many of us that, given the prerogative
,or the desire to open up visas in this country, the State Department
went overboard and in 1 year didn't even in one case, not even in one
case go along with Justice Department, the FBI or any of our intel-
ligence-law enforcement agenies in excluding a person who wanted to
come into this country. In that situation, I think the Congress clearly
.and properly; asked the State Department to give us reports, give us
:,the basis of its decisions, and I look upon this a little bit the same way.
Maybe I look at it from the legislator's perspective.
But let me separate the two parts of my question-the first was the
,promu1gati:ng -of regulations. I take it from what you say you don't
,have,any,objection to that provision.
Mr. SILVER. I don't have a strong objection to it but I have great
sl.epticism as to what it will accomplish. I think I could probably
write for, you ,the guidelines that the Justice Department would issue.
They in fact have principles; they don't make these decisions in a
'vacuum. They have certain principles, including the important and
laudable principle that they will not institute a prosecution unless
,they feel they have a substantial chance of obtaining a conviction,
;and :most of the decisions not to, prosecute un; cases .that involve classi-
fied information go.off on an appreciation by the Criminal Division or
Attorney General that they will not be able to obtain a conviction.
I find it hard to see how the promulgation of these guidelines will
neally,contribute much to the process or change any situation that may
exist today-
Mr. ASH-BROOK. Well, of course, we probably come down on the
same side for different reasons. My experience on guidelines, having
.spent 20 years in intelligence from a legislative standpoint, is that
'they usually inhibit good intelligence, for the most part, at least that
I have seen over the years.
But going back to your statement, I am a little surprised. Do you
Took upon the submission of written findings to this committee, when
'decision not to prosecute is made, as opening up the sensitive decision-
muaking process, or do you look upon it as just an intrusion in the
,executive or judicial functions of our Government, or putting the
legislative branch unwisely in that area?
Of course, we wouldn't be in on the takeoff, we would be in on the
landing, after the decision is made. We would only be finding out why
that decision was made, so we wouldn't be a part of the process of
making that decision.
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I'guess I am struggling to find out why you think that would inhibit.
the orderly process in the Justice Department.
Mr. SILVER. I didn't mean to say that I thought it would necessarily
inhibit anything. _
Mr. ASHBROOK. Well, you thought it was a bad policy. I guess I put,
words iii your mouth.
Mr. SILVER. It represents in my view-and this is entirely a per-
sonal perception-a step over the proper line of separation of powers.
between the legislature and the executive by, in effect, providing, if-
you will, instant oversight of each and every decision made in a- par-
ticular area by the Justice Department. That is a relatively unusual
kind of oversight, and I think it is not consistent with the relationship-
that exists and traditionally has existed between the two branches of
Government.
Mr. ASHBROOK. This isn't a right that the judicial branch or the-
Justice Department has operating on its own. It comes from a legisla-
tive nexus anyway. I guess I see some of Your concern, but I don't see,
it as an overreach. But, I asked for your opinion, not to argue it.
Thank you, Mr. Chairman.
Mr. MURPHY. Mr. Mazzoli?
Mr. MAZZOLI. Thank you very much, Mr. Chairman, and welcome-
again, Mr. Silver.
You have stated your support for the provision in the administra-
tion bill, section 8 (a), which deals with admitting into evidence classi-
fied information without having it declassified, and I wonder if you,
might address yourself to that point, whether you think that is the
proper situation with regard to the public's right to know what goes:
on in a trial? Does this provision conform to current practices in the.
courts? Just what would be your observations about that?
Mr. SILVER. Current practice in the courts, I think it is fair to say,_
vary, and there is no standard practice. In terms of the public's
right to know, that also is a somewhat.unclear and controversial issue
in the law, in the wake of recent Supreme Court decisions.
Obviously the quandary that we have in the graymail situation or-
in the, more generally, the situation where classified information is.
involved, is that if the public has a total right to know everything
related to the case, most of the time there will not be a case, and in
fact, we have to accept giving a grant of immunity to people whop
steal classified documents, who engage in espionage, or who engage in
a variety of other reprehensible conduct in which classified informa-
tion is relevant to prosecution or defense.
I find that an unaceptable path to follow. I think that an accom-
modation of the interests of public knowledge, the right to public-
trial, and the protection of classified information can be found without.
sealing the courtroom and having the trial conducted out of the sight
of the public. And I cite to you the Kampiles case in which the public
never saw the manual in question-now, that was by agreement be-
tween the parties and not by virtue of law such as proposed in this.
bill, but the result was the same. There was extensive press coverage.
It-seems to me that the public was copiously informed as to the theories,
of the defense, a great deal about the generic nature of the classified"
information involved, and the Government's assertions of the damage
to the national security, and anything that the defense had to say in,.
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-rebuttal, and that both the public interest in the judicial process and
the defendant's interest in having a public watchdog over the fairness
of the trial were adequately met. Yet the document was not disclosed.
Now, the quandary that we are in today is the Justice Department,
unsure of what is going to happen in the courtroom, would like us to
take that classification stamp off the document before the trial even
begins. If we do that, we are then in a position where even if the docu-
ment is not used in evidence, or is admitted as it.was in Kamzpiles with-
46 was not a lot of cooperation; that there was sort of a tensigir,
and' yet subsequently we found out that :maybe things might improve.
Before you went to the CIA, or even since that time, have you sensed
any positive change in the handling of these cases as a result of just a
better use of current rules and regulations and better contact between
parties, and basically would that be enough or do you believe you need
some legislation like this?
Mr. SILVER..1 believe quite strongly we need the legislation. I don't
think the relations between the intelligence agencies and the Justice
Department are any different today than they .were the last time Mr.
Lapham and I and Mr. Keuch testified here, and as we said then, there
is cooperation, and particularly at the senior levels,?between the gen-
eral,,counsels and- Mr. Heymann, for example,?butthere is an inherent
tension, and as the going gets hotter and heavier, the relations tend- to
become frayed.
-out public disclosure, someone has, according to the logic of the system,
made a finding that it no longer requires protection against disclosure,
:and again the logic of'the system says you can't stuff the cat back
in the bag.
This hasn't occurred yet, but I would be very concerned about what
would happen if someone made a Freedom of.Information Act request
for that document subsequently and we had to litigate the validity of
the classification after removing the markings and then putting them
back on after the trial.
Mr. MAZZOLI. Refresh my memory. In the Kampiles case, did the
attorney for Kampiles have access to the unexpurgated technical
.manual ?
Mr. SILVER. I will have to defer to the expert on that.
Mr. LAPJAM. Yes, Mr. Mazzoli, subject to a protective order, the
provisions restricting the right to further disseminate that informa-
tion, also restricting the right to make disclosure with respect to
particularly those parts of it which were deleted from the copy that
-was placed into evidence at the trial.
Mr. MAZZOLI. So a copy was placed in evidence with deletions in it.
However, the attorney had seen the original and was just by reason of
-this protective order prohibited from disseminating that, deleted
material plus all the other, all the.rest of the classified document, and
-the attorney couldn' develop any positions in trial which would involve
the disclosure of this deleted material.
Mr. LAPHAM. Not without an additional. authorization, from the
court, which he never sought.
Mr. MAZZOLI. Right.
Mr. Silver, let me ask you, you were here I guess it was months ago
when we had a panel. I think Tony was here with the gentleman from
-the Justice Department, Mr. Keuch, and it became pretty evident that
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The prosecutor wants to take into court the best case that he can. If
I were a prosecutor, I would certainly follow that course. That means
that even if he is convinced in his heart that he can win with one unit
of evidence, if there are five units of evidence lying around, he would'
like to throw them all at the jury.
I feel that it is my responsibility in dealing with the Justice Depart-
ment in a case like this to try to persuade them to take as little as min-
-
imally possible if the additional evidence would cause damage to the
national . security from the intelligence community's perception. And
there is a certain war of nerves or game of chicken that goes on up to-
the day the trial opens in that kind of situation that is basically un-
healithy for the intelligence community and for the whole system of
justice, in my view.
Mr. MAZZOLI. Well, I certainly thank you very much. You have been,
very helpful.
Mr. MurPHY. Does counsel have any questions?
Mr. O'NEIL. Mr. Silver, in section 6(c) (2) of 4745 the Government-
presents a standard for admissibility which is somewhat different from
that which pertains under the Rules of Evidence. Something must be-
relevant and material to the element of the offense, a legally cognizable-
defense and otherwise admissible as opposed to being simply relevant
or admissible, and it has been suggested that this would presently be-
permissible in the Federal courts along a theory which closely parallels
that advanced in the Roviaro case. That is different from the subcom-
mittee's approach.
Can you describe why you feel that is the appropriate standard?"
Mr. SILVER. I believe that the thinking behind this is an attempt in
confronting. the graymail. phenomenon to deal with the situation of
evidence that is in some fashion relevant in 'the largest sense of the
word, but is not probative, in some cases may even be counterproduc-
tive to the defense position, but which for graymail or blackmail tac-
ties, the , defense .is attempting to put into evidence. The attempt here
was to, staying always within the limits of the Constitution and of
fundamental principles of fairness, to narrow down in the area of
classified information the issues to those things that need a standard
both' 'of relevance .and of -materiality to the offense or an element .of
defense that is legally cognizable. There are, of course; a lot of ele-
ments of defense that may be tactically useful in the sense of throwing-
dust in the eyes of the jury or inflaming their passions. In 'same
criminal cases where there are.no other considerations at issue, a fairlt-
wde.latitude is allowed to the defense, but in a case where national'
security information .is involved, I feel that a stricter . standard "of'
relevance and materiality is, appropriate.
`M'r!' O'NEIL. Do you view 'it as simply a stricter standard for what-
might marginally. be relevant, or do you' consider. it a balancing
between a national security concern that might' be applied to.that .
low would you characterize. it?
Mi. SILVER. I'don't think the language of'the statute invites balan' c--
ii : It attempts to' establish a standard. Now, in its application I sup-
pose that materiality being a judgment call, there may be some element
of ti'alance involved. But it is not a balancing standard.
Mr. O'NEIL. Thank you.
particular piece of mformatlon and the marginal relevance ?
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Mr. MURPHY. Counsel?
Mr. GOLDMAN. Section 111 of the committee bill states that the Gov-
ernment shall notify the defendant regarding certain portions of ma-
terial that it is going to bring into evidence at trial. This was put in,
I believe, primarily to cover a case where adefendant is charged with
transmittel of a 500-page document and the Government wants to refer
only to maybe 10 pages.
Do you see any reason for inclusion in this section of a provision
that would limit the defendant's inquiry into the nature of the material
to those areas that the Government has already specified it would
concentrate on?
Mr. SILVER. That is, in effect, the theory of the administration's bill,
and it seems to me that what is provided in secion 111 would be, in any
event, a necessary consequence of the kind of procedures that are set
up in the administration bill because the prosecution, under the ad-
ministration bill, let's say in your 500-page document where the admin-
istration wanted to rely only on the first 10 pages, would be seeking an
order from the court to excise 490 pages for purposes of trial, and that
would give notice to the defendant.
I view the underlying principle of procedural techniques embodied
in the administration bill as that of the right of the prosecution, which
has the. burden of proof, to choose the evidence and the elements on
which it wants to base its case. Since the Government wants to go into
court with a weaker case than it conceivably could bring in order to
protect other valid governmental interests, then all we are asking is
that matters extraneous to that case not be brought into evidence and
brought into jeopardy by the defendant.
Mr. GOLDMAN. Well, then, is section 111 as it is worded now inade-
quate?-
Air. SILVER. I don't think it is inadequate. It may turn out in prac-
tice to be superfluous if the procedures provided for in the bill are
followed.
Mr. GOLDMAN. Thank, you, Mr. Chairman.
Mr. MURPHY. Thank you, Mr. Silver. We appreciate your testimony
41 again and your great service to this subcommittee.
Our last witness this afternoon is Mr. Lapham, formerly the Gen
eral Counsel of the CIA. Admiral Turner had to search' long and hard
to find Dan Silver to replace Mr. Lapham because he was such a. truly
valuable legal adviser. He was and is one of the most convincing wit-
nesses to appear before the subcommittee.
Tony, we welcome you once again and look forward to. testi-
mony.
STATEMENT OF ANTHONY A. LAPHAM,, FORMER GENERAL!
COUNSEL, CENTRAL INTELLIGENCE AGENCY.
Air. LAPHAM. Thank you, Mr. Chairman. It is a pleasure to, be
back even though I am appearing today obviously in a private capacity
and not as a representative of the Director of?Central Intelligence.
I am thankful for the opportunity to testify regarding H.R. 4736
and H.R. 4745, both of which would regulate the handling and use of
classified information in Federal prosecutions.
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156
On virtually every page of these two bills there. appear provisions
that would deal with various problems that plagued both the Depart-
ment of. Justice and the intelligence agencies throughout the 3-year
period of my service as General Counsel of CIA, ending this last May.
Looking back on that 3-year experience, I now believe that some of
the problems we encountered would never have arisen at all, and many
others could have been much more easily and safely resolved, without
impairing the fair trial rights of any defendant, had there been on
the books legislation of the kind this committee is now considering.
For that reason and others, I support the legislation, and I believe that
its enactment would improve the administration of criminal justice in
those cases, seemingly increasing in number, in which classified in-
formation is of true or asserted relevance.
As matters stand today, it is anybody's guess how classified mate-
rials will be handled in any particular case. There are few fixed points
of reference or accepted ground rules in this regard, and as I testified
at the committee's background hearings last January, the issues have
an unpleasant way of coming into focus late in the day, on the eve
.of trial, or during trial itself when there is little chance for reasoned
judgment or thoughtful weighing of competing interests or alternative
courses. of action.. Granting that there may be unpredictable issues
in any criminal case,. in too many instances even predictable issues
with national security aspects are not forced to the surface in time
to permit. a measured response. It is also a fact that matters of an
apparently routine nature, capable of standardized treatment from
one, case to the next, as for example the terms of protective orders
under which classified materials are made, available to defense during
?discovery and the conditions under which such materials are main-
tained and safeguarded before, during and after trial, are subject, to
ad hoc and differing resolutions depending on the preferences of in-
,dividual prosecutors and judges. One result of all this is that the
process of reconciling law enforcement interests and national security
'interests is more uncertain, more hectic and disorderly, and.more
-dangerous to both interests than it needs to be.
The central purpose of the proposed legislation, as I conceive it, is ?
to cut down the uncertainty and the risk. so that prosecutions are not
needlessly abandoned or legitimate secrets are not needlessly exposed,
without diminishing the rights of the. defendants. The second element
,of this purpose is of critical importance. So far as I. know, nobody 6
favors the idea of creating a disadvantaged class of defendants whose
rights would be traded-or balanced away in order to serve national
security objectives, and I could not support the legislation if I thought
it was intended to have such an effect. Instead, however, the general
idea of the legislation, again according, to my conception of it, is to
-stay within the framework of the existing' Federal Rules of Evidence
-and Criminal Procedure, and on the one hand to articulate a set of re-
quirements that are consistent with those rules and on the other hand
'to make explicit certain authorities that are now implicit in those
rules. With a few execptions, some of which are admitedly controyer-
-sial, there: are no provisions, in either. of the two proposed bills that.
would either erequire. or authorize any stepor procedure that could not
be required or authorized today, drawing on existing sources of jucdi-
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cial authority and discretion. Indeed, many of the procedures pres-
cribed by these bills have already been utilized at one time or an-
other. Were these bills to be enacted, therefore, the net effect would
be not so much to establish a new and distinctive body of law appli-
cable to cases in which national security information was at stake as it
would be to pull together in a consolidated format various procedures
that have already been employed or that are potentially available in
such cases, and to state a congressional direction that these procedures
be applied in a uniform manner.
As between H.R. 4736 and H.R. 4745, my view is that the latter is
the better -bill, although I agree with both Mr. Heymann and Mr. Silver
that the similarities are more important than the differences, and that
either bill would represent an advance as against the present state of
affairs. The fundamentals that should be preserved in any version of
the legislation, and that are common to both the proposed bills are, in
my opinion, as follows.
First, there should be a prior notice provision of the kind contained
in section 102 (a) of H.R. 4736 and section 5 of H.R. 4745, and supple-
mental provisions of the kind found in sections 102 (f) and 8 (d) of the
respective bills, to take care of situations in which defense counsel em-
barks on a line of inquiry that calls for the disclosure of classified
information not authorized to be disclosed by pretrial ruling.
Second, there should be an in camera opportunity for the Govern-
ment to contest the admissibility of any classified information that a
defendant declares an intention to use, and to obtain judicial rulings
on that issue prior to the intended disclosure, as provided by section
102 and 6 of the respective bills.
Third, there should be provisions such as those in sections 103 (a)
and 109(b) of H.R. 4736 and sections 4(b) and 6(c) (3) of H.R. 4745,
authorizing trial courts to consider and approve alternatives to the
disclosure of classified information, as for example summaries or ad-
missions of fact, whenever the alternative can be shown to be of equiva-
lent value in terms of the ability of the accused'to prepare or present
a defense.
And fourth, there should be a provision, as in sections 105 (b) and 7
of the respective bills, granting the Government at least a limited
right of interlocutory appeal from adverse trial court determinations
authorizing the disclosure or use of classified information.
I would react favorably to any legislation 'built around the funda-
mentals to which I have just referred. In saying that, however, I do
not mean to slight the other provisions in the proposed bills or to sug-
gest that a bill narrowed to its essentials would be the best of all pos-
sible bills. On the contrary, because the goal is to reduce the guesswork
and the risk in cases involving national security information, I favor
a more comprehensive legislative approach..
So, for example, I would hope that any bill would include protec-
tive order provisions, and on this score I think section 4(a) of H.R.
4745 is preferable to section 109 (a) of H.R. 4736 because the former
contains guidance as to the appropriate contents of a typical protec-
tive order, leaving less room for random decisions and promoting uni-
formity. Similarly, I strongly favor the provisions in sections 110
and 9 of the two bills regarding the adoption of security procedures
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to govern the storage and safeguarding of classified materials in judi-
cial custody. I also favor the provisions in section 8 (a) through (c)
of H.R. 4745, which have no counterpart in the other bill, regarding
the introduction of classified evidence.
So far as concerns the actual detail of the two bills, I have little to
add to Mr. Heymann's August testimony which covered the subject
rather thoroughly and with which I very largely agree. I would like,
however, to comment on some of the objections that have been voiced
with respect to the administration bill.
One of the principal objections has to do with section 10 of H.R.
4745 which would amend the Jencks Act in such a way as to authorize
prior statements of Government witnesses to be withheld from the de-
fense insofar as such statements were found to be both properly classi-
fied and consistent with the trial testimony of the witness. I am not
aware that the Jencks Act has been a frequent or serious obstacle to the
prosecution of cases involving national security information, and in
any event, I think the objection to the proposed amendment is well
founded. The consistency of a prior statement and the trial testimony
of a witness is not a true or complete test of its utility to the defense
for purposes of cross examination, and it therefore seems to me that
the proposed amendment indeed does have the potential for depriving
it defendant of material that is more than marginally relevant to the
defense. If section 10 is to be retained at all, I would soften its impact
by providing instead that prior statements may be withheld only inso-
far as a court determines that they are properly classified and that
they contain nothing of material value to the defense. The consistency
of the statements and the testimony could be one pertinent factor in
making such a determination, but it should not be the only permissible
factor to consider.
There is one other aspect in which I believe that H.R. 4745 tilts the
balance unfairly against an accused. Section 4(b) (1) of that bill pro-
vides that where classified materials are properly within the scope of
discovery, a court nevertheless must approve Government requests to
make an alternative form of disclosure, as for example a summary or
admission of fact, "unless the court determines that disclosure of the
classified information itself is necessary to enable the defendant to
prepare for trial." Section 6(b) (3) sets forth a comparable standard
with regard to disclosures to be made in trial settings rather than dis-
covery settings. For my own part, I doubt that courts could often make
the strong affirmative findings in favor of the defense that are con-
templated by these sections, especially given the fact that the finding
will generally be based on ex parte proceedings from which defense
counsel is excluded. I would adjust these provisions so as to authorize
alternative forms of disclosure only if a court determines that such
action would not materially impair the ability of the accused to prepare
or present a defense. In other words, I would modify the nature of the
required findings in such a way as to place somewhat more of a burden
on the Government to justify an alternative form of disclosure. I
would also add a provision to section 4 (b) requiring notice to a defend-
ant whenever an alternative form of disclosure is approved, so as to
make possible the exercise of the statutory right of objection to this
procedure.
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For the rest, I do not agree with the objections that have been
lodged against H.R. 4745, although I believe at least some of these
objections could be accomodated without doing any real violence to
the legislation. I particularly do not agree with what I regard as the
underlying premises of some of the objections, namely, that there is no
proper place in criminal proceedings for any ex parte proceedings and
that under all circumstances the defendant has a
uaranteed ri
ht to
g
g
+ participate in all deliberations as to what materials are relevant to
the defense.
I commend the committee for its efforts to develop legislation in this
complicated field, and I would be pleased to .answer o, t, .,,
t
s
M
M
.
URPHY. lvlr. Lapham, that is the second bell. Would you be
kind enough to wait? We can come back. We shouldn't be more than
5 minutes.
Mr. LAPHAM. No problem at all.
[A brief recess was taken.]
Mr. MURPHY. The meeting will come to order.
Mr. Lapham, what do you think of the proposals we have received
suggesting that we legislate changes in the Federal rules rather than
the permanent statute as considered in the various bills before us?
Mr. LAPHAM. I think the principal disadvantage of that approach,
Mr. Murphy, is that it cuts up the bill into as many different pieces
as there are different rules that might have to be amended or modified
to pick up all that is in this legislation. One of the advantages of the
other approach, I think, is that you keep in one place where somebody
can see at one time something like a procedural manual for national
security cases, and I think that is a benefit that you shouldn't lightly
give up. There are other ways to accomplish the kind of reviews that
would occur if the legislation took the form of amendments to the
rules. One way, I suppose, would be to write a sunset provision into
the law requiring a congressional review at the end of a period of
years so that various committees and professional bodies and so forth
could be called upon to state their opinion at that time as to how well
this legislation had worked. I think on balance I tend to prefer the
approach that is embodied in these bills.
Mr. MURPHY. Mr. Mazzoli?
Mr. MAzzOLI. Thank you
Mr. Chairman
,
.
Mr. Lapham, welcome, of course, and we wish you well.
You were here before, and you were part of the panel which included
Mr. Silver and Mr. Keuch in which it became evident to the subcom-
mittee that there was confusion or at least some concerns as to the
willingness of the parties to work together.
Are you satisfied that despite the very best working relationship
that can be developed, there is still a need for this kind of legislation
which is before the subcommittee to solve the problem?
Mr. LAPHAM. Yes. I'm convinced in my own mind, Mr. Mazzoli,
that there is a genuine need for this legislation. It is true that one
of the consequences, I think, of not having the legislation is that
more misunderstandings occur between the Department and the in-
telligence agencies than would occur if this sort of guidance was
written into the law.
I also think, Mr. Mazzoli, that the country has paid some price by
virtue of the fact that no legislation of this sort existed. The Price
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160
doesn't take alone the form of misunderstandings between intelli-
gence agencies and the Department of Justice. It takes other equally
serious forms. It may, for all I know, create something of a public
perception that there is a class of favored defendants who are in a
position to exploit the judicial system because of their access to
secrets. My impression is that Mr. Heymann feels that there is that
sort of a public perception. The price has been paid in terms of prose-
cutions that have been abandoned, although there have been very V
few of them, that might otherwise have been successfully under-
taken, and I think frankly we have been lucky as a country that the
price hasn't been worse.
As I said when I was speaking from the back bench here a moment ie
ago, there have been any number of cases, more than I like to think
about anymore, when some very important prosecutions very nearly
floundered because we couldn't find in the time that was available, or
very nearly couldn't find answers to the kind of questions that this
legislation would help to resolve.
Mr. MAZZOLI. You said something today which was akin to what
Mr. Lacovara said this morning-he used the term synthesis of tech-
niques, and you I think said today that these all had 'precedents, that
they are being used at different times, different places by different
julges and in different circumstances. But you still feel like Mr. Laco-
vara that there is a point and purpose in stating these and writing
them into a piece of legislation, and could you expand on that? I think
that is probably going to be one area that we as a committee are going
to have to answer to the full House. If these have precedent, if the
judges can use them, if these aren't unique and novel, then why should
we put these down on another piece of legislation, more paperwork
and so forth?
Mr. LAPHAM. I think one aspect of the answer is that it isn't al-
together correct to say that this proposed legislation is built on an
existing framework of law and procedure. That is largely true, and
I think that is a very important consideration. There are some excep-
tions, however. 'Take, for example, the rights that are granted to
the Government to pursue interlocutory appeals from adverse trial
court determinations. There is nothing in the law today that author-
izes the Government to do that, and indeed, the ITT cases provide a
recent example of a situation in which no right of appeal was
available.
So there are some features of the legislation that represent new
authority.
For the most part, though, what is happening here, at least as I
see this bill, is that you are pulling together a set of procedures
authorized by the rules as they now stand. The benefit you are going
to get from doing it is greater certainly in the acceptance and ap-
plication of these procedures. Today the situation is you can go to
a district court in this particular district, and there is going to be
one outcome. You can go to the district court in another district on
exactly the same issue, and you are going to come out in a rather
drastically different place. So what you are accomplishing is to in-
crease the likelihood that there is going to be an orderly and uni-
form process followed in these cases.
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It is not so much a matter that it couldn't happen today. It rather
is a matter that it doesn't happen today.
Mr. Mazzoni. Le me ask you one last question. It is very hard, I am
sure, for you to answer this question, but assuming you represented
Kampiles-as I say, it is a very hard leap of faith, but assuming
that you represented him, and assuming that the committee bill were
the law of the land, would you feel that the committee bill gave you
the opportunity to protect your client and to develop for him the
very best kind of defense?
Mr. LAPHAM. By committee bill you mean H.R. 4736?
Mr. Mazzoni. Yes.
Mr. LAPHAM. I would probably say no but I think I would believe
yes.
Mr. Mazzoni. All right, how about the administration bill?
Mr. LAPHAM. I would say no more loudly with respect to the ad-
ministration proposal, particularly because of the Jencks Act fea-
ture of the bill which I am personally opposed to, but also because
of the other features of the bill, particularly I think the require-
ment that it be shown that classified material is both relevant and
material to my side of the case before I had any entitlement to use it.
Mr. Mazzoni. Would the answer be pretty much the same answer
with respect to the Biden bill, a fairly louder no than you would have
as to the committee bill?
Mr. LAPHAM. I think so, Mr. Mazzoli, but I haven't in the last
week or so reviewed the Biden bill, so I am not comfortable about
answering.
Mr. MAZZOLI. Thank you very much. That's all the questions I have.
Mr. MURPHY. Counsel?
Mr. O'NEIL. Mr. Lapham, one of the issues presented with these two
bills is when the court ought to receive the submission of the Govern-
ment on the sensitivity of the national security information that is
at issue, before or after the court makes its. determination on rele-
vance or admissibility. What is your feeling?
Mr. LAPHAM. It is a very hard question. My feeling is that H.R.
4745 makes sense and that the proper time to make that showing to
the judge is before he makes his ruling. Let me tell you why I think
that.
There will be some instances in which the defendant and the de-
fense counsel don't know where they are in the case, don't know what
they have stumbled across. They have asked a question either in dis-
covery, or it could happen in the trial itself, and they don't know
what the answer is, but it happens that the answer is a secret. Now,
this is not too far distant from circumstances which have actually'
occurred.
Now, I don't think the Government should be forced into an ad-
versary setting with defense counsel in the room, when the nature of
its argument is that a particular classified item of information should
not be disclosed to the defense at all. Its position is going to be in
that context, we don't believe that this fact is relevant or that the
defendant has a need or a right to know it. You have lost the argument
already if defense counsel is in the room, and therefore I think there
has to be a means by which you can make the argument in an ex parte
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fashion. And that is one of the reasons why I think it makes the best
sense to make the disclosure to the judge before he is called upon to
make the admissibility ruling.
Besides that, there is a very practical consideration here, and that
is that judges just don't like to make rulings about anything unless
they know what is involved, and you will always be facing a judge
who is going to be saying, you know, why are you asking me to do
this? I don't even know what the secret is. And he is going to be far
more reluctant to make determinations in the Government's favor,
even though they may be well justified, if he doesn't know what all
the considerations are.
Mr. O'NEIL. Could you explain to us why you feel as well-
Mr. LAPHAM. I think also that if a judge has to make a ruling, this
fact either is or isn't relevant, that is the ruling he is being asked to
make, and he rules without understanding the national security con-
siderations, then under the committee bill what will happen is that
the Government will then go back and tell him look, the secret really
was this, Judge, and because this is the secret, you now have to approve
an alternative form of disclosure. Well, the judge is going to get very
irritated at that point and say well, why didn't you tell me? You put
me through that process of trying to figure this thing out and now
you tell me that this is a terrific secret.
Mr. O'NEIL. Well, in the administration approach, the decision he
makes isn't whether it is relevant, it is whether it is relevant and ma-
terial. That's the first point.
How does that affect the difficult nature of the decisions he has to
make? Does it make it a little easier for him?
Mr. LAPHAM. I'm not sure I know the answer to that, Mr. O'Neil.
The distinction between something being relevant and something be-
ing relevant and material may be paper thin and it may be a nonexist-
ent distinction for all I know. I am not sure I really understand the
distance that separates those two standards, and therefore I have
trouble coping with that last question.
Mr. O'NEIL. Well, I guess that would be the problem we would have,
too. It would be difficult for us to understand. The Government has a
theory which I suppose it intends to develop case by case. That stand-
ard is certainly going to affect the kind of decision the court has to
make.
Mr. LAPHAM. I must say I doubt that proposition. I think when it
comes time to deal with classified information, assuming it is properly
classified, a judge is going to apply, whatever you call it, he is going
to apply a somewhat higher standard of relevance than he probably
otherwise would. I don't think you are going to see judges letting in
classified information just because there is some theory that it has some
tenuous probative connection with some issue. He is going to take a
harder look and apply, probably not calling it by this name, but apply
a bit stricter standard. I have no doubt of that.
Mr. O'NEIL. Well, one last question, Mr. Chairman.
Title, II of 4736 provides mandated standards by which the Depart-
ment of Justice will reach a decision on the prosecutability of a case
involving classified information, then requires reports to the commit-
tees of Congress when decisions are made not to prosecute. What do
you think of the efficacy or value of that?
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11653
Mr. LAPHAM. As to the guidelines, I agree heartily with what Mr.
Silver said it moment ago. I think we could sit around this table and
write those guidelines in 10 minutes and you would find them totally
uninformative. What they are going to say is, you consider the im-
portance of the case, the seriousness of the offense, the importance of
the information, the likelihood of success, the credibility of the wit-
nesses and then you decide, and that the decision must be made by some
rv high ranking official in the Department of Justice. So I think you are
going to get nothing for your money by requiring a set of guidelines.
As to the oversight provision, I see that less in terms of a separation
of power issue than as a practical kind of issue. I believe that the
~- reportin
rovisi
i
g p
on
s an unnecessarily blunt and inflexible instrument
of oversight. You don't need, it seems to me, a report every time this
kind of a case. happens, along with a statement of the reasons for it
and so forth, because if there is a publicized case or a case that interests
the committee, there isn't any reason that you can't call upon the
appropriate officials to come and explain to you what happened any-
way.
Beyond that, I think what you are talking about here is more a
matter of oversight of the prosecuting functions of the Department
of Justice than it is the oversight of intelligence activities, and if you
write these report requirements into the bill, directing that the reports
come to the House Intelligence Committee and to the Senate Intelli-
gence Committee, it won't be long before there is also in the bill a re-
quirement that the reports go to the Judiciary Committee in the House,
the Judiciary Committee in the Senate, and before you know it, you
are going to have these reports scattered all over town, and at that
point it seems to me you tip the balance against the requirement rather
than in favor. It is at that point that the oversight is just-generating
pieces of paper which turn out to be harmful rather than helpful.
Mr. MuiPny. Counsel?
Mr. GOLDMAN. Do the problems which these bills are designed to
take care of, in your experience, prevent in any way leak investiga-
tions because it is felt that even if you found the culprit, that there
would be a problem of graymail, or are they just two different cases
I mean, we have heard many reasons why leaks are not followed up,
why there is a problem, why they are not investigated, but this is
not one of the problems.
Mr. LAPHAM. I don't see a connection. I may be missing something.
I. don't see a connection. You have heard me express my pet theories
on that particular subject. They don't have anything to do with any-
thing in this bill.
Mr. GOLDMAN. OK; thank you.
Mr. MURPHY. Thank you very much, Tony. We appreciate you be-
ing here, and good luck to you in your new pursuits.
Mr. LAPHAM. Thank you very much, Mr. Chairman.
Mr. MURPHY. The meeting is adjourned.
[Whereupon, at 2:30 p.m., the subcommittee recessed subject to the
call of the Chair.]
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164
96TH CONGRESS
1ST SESSION
15 H. R. 4736
To establish certain pretrial and trial procedures for the use of classified
information in connection with Federal criminal cases, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 11, 1979
Mr. MURPHY of Illinois (for himself, Mr. BOLAND, Mr. MCCLORY, Mr. ZABLOCKI,
Mr. BURLISON, Mr. ASPIN, Mr. ROSE, Mr. MAZZOLI, Mr. MINETA, Mr.
FOWLER, and Mr. DANIELSON) introduced the following bill; which was
referred jointly to the Committee on the Judiciary and the Permanent Select
Committee on Intelligence
A BILL
To establish certain pretrial and trial procedures for the use of
classified information in connection with Federal criminal
cases, and for other purposes.
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 Criminal Trial Procedures Act".
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1 TITLE I-PROCEDURES FOR DISCLOSURE OF
2
CLASSIFIED
INFORMATION IN CRIMINAL
3
CASES
4
PRETRIAL CONFERENCES
5
SEC. 101. At any time after the filing by the United
6 States of an indictment or information in a United States
7 district court, any party to the case may request a pretrial
8 conference to consider matters relating to classified informa-
9 tion that may arise in connection with the prosecution. Upon
10 such a request, the court shall promptly hold a pretrial con-
11 ference to establish a schedule for any request for discovery
12 of classified information and for the implementation of the
13 procedures established by this title. In addition, at such a
14 pretrial conference the court may consider any other matter
15 which may promote a fair and expeditious trial.
1.6 PROCEDURES FOR DISCLOSURE OF CLASSIFIED
18 SEC. 102. (a)(1) Whenever a defendant in any Federal
19 prosecution intends to take any action to disclose or cause
20 the disclosure of classified information in any manner in con-
21 nection with such prosecution, the defendant shall, before
22 such disclosure and before the trial or any pretrial hearing,
23 notify the court and the attorney for the United States of
24 such intention and shall not disclose or cause the disclosure
25 of such information unless authorized to do so by the court in
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1 accordance with this title. Such notice shall include a brief
2 description of the classified information that is the subject of
3 such notice.
4 (2)(A) Within ten days of receiving a notification under
5 paragraph (1) or otherwise learning before the trial or any
6 pretrial hearing that any action of a defendant will require or
7 is likely to result in the disclosure of classified information at
8 the trial or such pretrial hearing, the United States, by writ-
9 ten petition of the Attorney General, may request the court
10 to conduct a proceeding to make all determinations concern-
11 ing the use, relevance, or admissibility of the classified infor-
12 mation at issue that would otherwise be made during the trial
13 or a pretrial hearing. Upon such a request, the court shall
14 conduct such a proceeding.
15 (B) Any proceeding held ,pursuant to a request under
16 subparagraph (A) (or any portion of such proceeding specified
17 in the request of the Attorney General) shall be held in
18 camera if the Attorney General certifies to the court in such
19 petition that a public proceeding may result in the disclosure
20 of classified information.
21 (C) If a request for a proceeding under this subsection. is
22 not made within ten days or if, at the close of such a proceed=-
23 ing, the determination of the court regarding .the use;: ref=
24 evance, or admissibility of the classified information at issue.
25 is favorable to the defendant, the court shall authorize the-
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2 information at the trial or at any pretrial hearing, but such
3 disclosure may not be made before the time for the United
4 States to appeal such determination under section 108 has
5 expired. If the United States takes such an appeal, such dis-
6 closure may not be made until such appeal is decided.
7 (b)(1) Whenever a defendant in a Federal prosecution
8 intends to take any action to disclose or cause the disclosure,
9 during the trial or any pretrial hearing, of any classified infor-
10 mation and the defendant has not given notice under subsec-
11 tion (a)(1) with respect to such disclosure because the interest
12 of the defendant in such disclosure reasonably could not have
13 been anticipated before the expiration of the time for giving
14 such notice, the defendant shall, before taking such action,
15 notify the court and the attorney for the United States of
? 'c
16 such intention and shall not disclose or cause the disclosure
17 of such information unless authorized by the court to do so in
18 accordance with this title. Such notice shall include a brief
19 description of the classified information that is the subject of
20 such notice.
21 (2)(A) Within forty-eight hours of the receipt of a notifi-
22 cation under paragraph (1), the United States, by written pe-
23 tition of the Attorney General, may request the court to con-
24 duct a proceeding to make all determinations concerning the
25 use, relevance, or admissibility of the classified information at
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1 issue. Upon sunh?a,~equest, the court shall conduct such a
2 proceeding.
3 (B) Any proceeding held pursuant to a request under
4 subparagraph (A) (or any portion of such proceeding specified V
5 in the request of the Attorney General) shall be held in
6 camera if the Attorney General certifies to the court in such
7 petition that a public proceeding may result in the disclosure
8 of classified information.
9 (C) If a request for a proceeding under this subsection is
10 not made within forty-eight hours or if, at the close of such a
11 proceeding,` the determination of the court regarding the use,
12 relevance, or admissibility of the classified information at
13 issue is favorable to the defendant, the court, subject to the
14 provisions of section 106, shall authorize the defendant to
15 disclose or cause the disclosure of the classified information
16 at the trial or any pretrial hearing, but such disclosure may
17 not be made before the time for the United States to appeal
18 such determination under section 108 has expired. If the
19 United States takes such an appeal, such disclosure may not
20 be made until such appeal is decided. In any order of the
21 court under this subsection that is favorable to the defendant,
22 the court shall specify the time to be allowed the United
23 States to appeal such order under section 108.
24 (c)(1) Whenever the United States learns during a crimi-
25 nal trial or a pretrial hearing in connection with a criminal
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1 trial (other than by notification pursuant to subsection (b)(1))
2 that any action of the defendant will result in, or is likely to
3 result in, the disclosure of classified information which has
4 not been the subject of pretrial notice under subsection (a),
5 the United States, by written petition of the Attorney Gener-
6 al, may request the court to conduct a proceeding to make all
7 determinations concerning the use, relevance, or admissibility
8 of the classified information at issue. Upon such a request,
9 the court shall conduct such a proceeding.
10 (2) Any proceeding held pursuant to a request under
11 paragraph (1) (or any portion of such proceeding specified in
12 the request of the Attorney General) shall be held in camera
13 if the Attorney General certifies to the court in such petition
14 that a public proceeding may result in the disclosure of classi-
15 fied information.
16 (3) If, at the close of a proceeding held pursuant to this
17 subsection, the determination of the court regarding the use,
18 relevance, or admissibility of the classified information at
19 issue is favorable to the defendant, the court, subject to the
20 provisions of section 106, shall authorize the defendant to
21 disclose or cause the disclosure of the classified information
22 at the trial or at any pretrial hearing, but such disclosure
23 may not be made before the time for the United States to
24 appeal such determination under section 108 has expired. If
25 the United States takes such an appeal, such disclosure may
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1 not be made until such appeal is decided. In any order of the
2 court under this subsection that is favorable to the defendant,
3 the court shall specify the time to be allowed the United
4 States to appeal such order under section 108.
5 (d) Upon receiving a request from the United States for
6 a proceeding under- subsection (a)(2), (b)(2), or (c)(1), the
7 court shall issue an order prohibiting the defendant from dis-
8 closing or causing the disclosure of the classified information
9 at issue pending conclusion of the proceeding.
10 (e) Before any proceeding is conducted pursuant to a
11 request by the United States under subsection (a)(2), (b)(2), or
12 (c)(1), the United States shall provide the defendant with
13 notice of the classified information that is at issue. Such
14 notice shall identify the specific classified information at issue
15 whenever that information previously has been made availa-
16 ble to the defendant by the United States. When the United
17 States has not previously made the information available to
18 the defendant, the information may be described by generic
19 category rather than by identification of the specific informa-
20 tion of concern to the United States.
21 (f) During the examination of a witness by a defendant
22 in any criminal proceeding, the United States may object to
23 any question or line of inquiry that may require the witness
24 to disclose classified information not previously found to be
25 admissible in accordance with the procedures established by
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1 this title. Upon such an objection, the court shall take such
2 action to determine whether the response is admissible as
3 will safeguard against the disclosure of any classified infor-
4 mation. Such action may include requiring the United States
5 to provide the court with a proffer of the response of the
6 witness to the question or line of inquiry anticipated by the
7 United States and requiring the defendant to provide the
8 court with a proffer of the nature of the information sought to
9 be elicited.
10 ALTERNATIVE PROCEDURE FOR DISCLOSURE OF
11 CLASSIFIED INFORMATION
12 SEC. 103. (a) Upon any determination by the court au-
13 thorizing the disclosure of specific classified information
14 under the procedures established by section 102, the United
15 States may move that, in lieu of the disclosure of such specif-
16 is classified information, the court order-
17 (1) the substitution for such classified information
18 of a statement admitting relevant facts that the specific
19 classified information would tend to prove; or
20 (2) the substitution for such classified information
21 of a summary of the specific classified information.
22 The court shall grant such a motion of the United States if it
23 finds that the defendant's right to a fair trial will not be pre-
24 judiced thereby. The court shall hold a hearing on any motion
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1 under this section. Any such hearing shall be held in camera
2 at the request of the Attorney General.
3 (b) The United States may, in connection with a motion
4 under subsection (a), submit to the court an affidavit of the
5 Attorney General certifying that disclosure of the classified
6 information would cause identifiable damage to the national r
7 security of the United States and explaining the basis for the
8 classification of such information. If so requested by the
9 United States, the court shall examine such affidavit in
10 camera and ex parte.
11 SEALING OF RECORDS OF IN CAMERA PROCEEDINGS
12 SEC. 104. If at the close of an in camera proceeding
13 under this title (or any portion of a proceeding under this title
14 that is held in camera) the court determines that the classi-
15 lied information at issue may not be disclosed or elicited at
16 the trial or any pretrial hearing, the record of such in camera
17 proceeding shall be sealed and preserved by the court for use
18 in the event of an appeal.
19 PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMA-
20 TION BY DEFENDANT; RELIEF FOR DEFENDANT WHEN
21 UNITED STATES OPPOSES DISCLOSURE
22 SEC. 105. (a) Whenever the court denies a motion by
23 the United States that it issue an order under section 103(a)
24 and the United States files with the court an affidavit of the
25 Attorney General objecting to disclosure of the classified in-
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1 formation at issue, the court shall order that the defendant
2 not disclose or cause the disclosure of such information.
3 (b) Whenever a defendant is prevented by an order
4 under subsection (a) from disclosing or causing the disclosure
5 of classified information, the court shall dismiss the indict-
6 ment or information. However, when the court determines
7 that the interests of justice would not be served by dismissal
8 of the indictment or information, the court shall order such
9 other action, in lieu of dismissing the indictment or informa-
10 tion, as the court determines is appropriate. Such action may
11 include--
12 (1) dismissing specified counts of the indictment or
13 information;
14 (2) finding against the United States on any issue
15 as to which the excluded classified information relates;
16 or
17 (3) striking or precluding all or any part of the
18 testimony of a witness.
19 FAILURE OF DEFENDANT TO PROVIDE PRETRIAL NOTICE
20 SEC. 106. If a defendant fails to comply with the notice
21 requirements of subsection (a) or (b) of section 102 and the
22 court finds that the defendant's need to disclose or cause the
23 disclosure of the classified information at issue reasonably
24 could have been anticipated before the expiration of the time
25 for giving such notice under such subsection, the court may
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174
1 prohibit the defendant from disclosing or causing the disclo-
2 sure of such classified information during trial and may pro-
3 hibit the examination by the defendant of any witness with
4 respect to any such information.
RECIPROCITY; DISCLOSURE BY THE UNITED STATES OF
REBUTTAL EVIDENCE
SEC. 107. (a) Whenever the court determines, in ac-
cordance with the procedures prescribed in section 102, that
classified information may be disclosed in connection with a
criminal trial or pretrial hearing or issues an order pursuant
to section 103(a), the court shall-
(1) order the United States to provide the defend-
ant with the information it expects to use to rebut the
particular classified information at issue; and
(2) order the United States to provide the defend-
ant with the identity of any witness it expects to use
to rebut the particular classified information at issue.
(b) If the United States fails to comply with an order
under subsection (a), the court, unless it finds that the use at
trial of information or a witness reasonably could not have
22 subject of a required disclosure and may prohibit the exami-
23 nation by the United States of any witness with respect to
24 such information.
been anticipated, may exclude any evidence not made the
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1 (c) Whenever the United States requests a pretrial pro-
2 ceeding under section 102, the United States, upon request
3 of the defendant, shall provide the defendant with a bill of
4 particulars as to the portions of the indictment or information
5 which the defendant identifies as related to the classified in-
6 formation at issue in the pretrial proceeding. The bill of par-
7 ticulars shall be provided before such proceeding.
8 APPEALS BY THE UNITED STATES
9 SEC. 108. (a) The United States may appeal to a court
of appeals before or during trial from any decision or order of
a district court in a criminal case requiring or authorizing the
production, disclosure, or use of classified information, impos-
13 ing sanctions for nondisclosure of classified information, or
14 denying the issuance of a protective order sought by the
15 United States to prevent the disclosure of classified informa-
16 tion, if the Attorney General certifies to the district court
17 that the appeal is not taken for purpose of delay.
18 (b)(1) If an appeal under this section is taken before the
19 trial has begun, the appeal shall be taken within ten days
20 after the date of the decision or order appealed from, and the
21 trial shall not commence until the appeal is decided.
22 (2) If an appeal under this section is taken during the
23 trial, the trial court shall adjourn the trial until the appeal is
24 resolved, and the court of appeals (A) shall hear argument on
25 such appeal within four days of the adjournment of the trial,
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(B) may dispense with written briefs other than the support-
ing materials previously submitted to the trial court, (C) shall
render its decision within four days of argument on appeal,
and (D) may dispense with the issuance of a written opinion
in rendering its decision.
(c) Any appeal and decision under this section shall not
affect the right of the defendant, in a subsequent appeal from
a judgment of conviction, to claim as error reversal by the
trial court on remand of a ruling appealed from during trial.
PROTECTIVE ORDERS
SEC. 109. (a) Upon motion of the United States, the
court shall issue an order to protect against the disclosure of
any classified information disclosed by the United States to
any defendant in any criminal case in a district court of the
United States.
(b) Pursuant to its authority under the Federal Rules of
Criminal Procedure, the court may authorize the United
States to delete specified items of classified information from
documents to be made available to the defendant, to substi-
tute a summary of the information for such classified docu-
ments, or to substitute a statement admitting relevant facts
that the classified information would tend to prove. The
23 motion of the United States requesting such authorization
24 (and materials submitted in support of such motion) shall,
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1 upon request of the United States, be considered by the court
2 in camera and shall not be disclosed to the defendant.
3 SECURITY PROCEDURES
4 SEC. 110. (a) Within one hundred and twenty days of
5 the date of the enactment of this Act, the Supreme Court of
6 the United States, in consultation with the Attorney General
7 and the Director of Central Intelligence, shall prescribe rules
8 establishing procedures for the protection against unauthor-
9 ized disclosure of any classified information in the custody of
10 the United States district courts, courts of appeals, or Su-
11 preme Court. Such rules, and any.changes in such rules,
12 shall be submitted to the appropriate committees of Congress
13 and shall become effective forty-five days after such submis-
sion.
(b) Until such time as rules under subsection (a) first
become effective, the Federal courts shall in each case in-
17 volving classified information adopt procedures to protect
18 against the unauthorized disclosure of such information.
19 IDENTIFICATION OF INFORMATION RELATED TO THE
20 NATIONAL DEFENSE
21 SEC.. 111. In any prosecution in which the United
22 States must establish as an element of the offense that mate-
23 rial relates to the national defense or constitutes classified
24 information, the United States shall notify the defendant,
25 within the time specified by the court, of the portions of the
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1 material that it reasonably expects to rely upon to establish
2 such element of the offense.
3 FUNCTIONS OF ATTORNEY GENERAL MAY BE EXERCISED
4 BY DEPUTY ATTORNEY GENERAL AND A DESIGNATED
5 ASSISTANT ATTORNEY GENERAL
6 SEC. 112. The functions and duties of the Attorney
7 General under this title may be exercised by the Deputy At-
8 torney General and by an Assistant Attorney General desig-
9 nated by the Attorney General for such purpose and may not
10 be delegated to any other official.
11 DEFINITION
12 SEC. 113. As used in this title, the term "classified in-
13 formation" means information or material that is designated
14 and clearly marked or clearly represented, pursuant to the
15 provisions of a statute or Executive order (or a regulation or
16 order issued pursuant to a statute or Executive order), as
17 information requiring a specific degree of protection against
18 unauthorized disclosure for reasons of national security, or
19 information derived therefrom, or any Restricted Data, as de-
20 fined in section 11 y. of the Atomic Energy Act of 1954 (42
21 U.S.C.2014(y)).
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1 TITLE II-DEPARTMENT OF JUSTICE DECISIONS
2 NOT TO PROSECUTE BECAUSE OF POSSIBLE
3 DISCLOSURE OF CLASSIFIED INFORMATION
4 GUIDELINES PRESCRIBED BY THE ATTORNEY GENERAL
5 SEC. 201. Within ninety days of the date of the enact-
6 ment of this Act, the Attorney General shall issue guidelines
7 specifying the factors to be used by the Department of Jus-
8 tice in deciding whether to prosecute a violation of Federal
9 law in which there is a possibility that classified information
10 will be disclosed. Such guidelines shall be promptly transmit-
11 ted to the appropriate committees of the Congress.
12 PREPARATION OF FINDINGS WHEN DECISION NOT TO
13 PROSECUTE IS MADE
14 SEC. 202. (a) Whenever the United States decides not
15 to prosecute ' any individual for a violation of Federal law
.16 because there is a possibility that classified information will
17 be revealed, an appropriate official of the Department of Jus-
18 tice shall prepare written findings detailing the reasons for
19 the decision not to prosecute such individual. The findings
20 shall be prepared within thirty days of the date on which the
21 decision not to prosecute is made and shall include-
22 (1) the classified information which the United
23 States believes might be disclosed;
24 (2) the purpose for which the information might
25 be disclosed;
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1 (3) the probability that the information would be
2 disclosed in the event of a prosecution; and
3 (4) the possible consequences such disclosure
4 would have on the national security.
5 (b) All findings under subsection (a) shall be promptly
6 reported to the Permanent Select Committee on Intelligence
7 of the House of Representatives and the Select Committee
8 on Intelligence of the Senate.
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181
96TH CONGRESS R. 4745
1ST SESSION
To provide certain pretrial, trial, and appellate procedures for criminal cases
involving classified information.
IN THE HOUSE OF REPRESENTATIVES
JULY 11, 1979
Mr. RonINO introduced the following bill; which was referred jointly to the
Committee on the Judiciary and the Permanent Select Committee on Intelli-
gence
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 SEC. 2. (a) "Classified information", as used in this Act,
7 means any information or material that has been determined
8 by the United States Government pursuant to an Executive
9 order, statute, or regulation, to require protection against un-
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182
1 authorized disclosure for reasons of national security and any
2 restricted data, as defined in section 2014(y) of title 42,
3 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. 3. 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 pros-
18 ecution.
19 DISCLOSURE OF CLASSIFIED INFORMATION TO
20 DEFENDANTS
21 SEC. 4. (a) If the Government discloses classified infor-
22 mation to a defendant in a criminal case whether in response
23 to a discovery request, in fulfillment of its due process obliga-
24 tions, or otherwise, the court, at the request of the Govern-
25 ment, shall..:enter an appropriate protective order to guard
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183
1 against the compromise of the information disclosed to the
2 defendant. The terms of any such protective order may in-
3 clude, but need not be limited to, provisions-
4 (i) prohibiting the disclosure of the information
5 except as authorized by the court;
6 (ii) requiring storage of material in a manner ap-
7 propriate for the level of classification assigned to the
8 documents to be disclosed;
9 (iii) requiring controlled access to the material
10 during normal business hours and at other times upon
11 reasonable notice;
12 (iv) requiring appropriate security clearances for
13 persons having a need to examine the information in
14 connection with the preparation of the defense;
15 (v) requiring the maintenance of logs recording
16 access by all persons authorized by the court to have
17 access to the classified information in connection with
18 the preparation of the defense;
19 (vi) regulating the making and handling of notes
20 taken from material containing classified information;
21 and
22 (vii) authorizing the assignment of Government
23 security personnel and the provision of Government
.24 storage facilities.
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1 (b)(1) The court, upon motion of the Government, shall
2 authorize (i) the deletion of specified items of classified infor-
3 mation from documents to be made available to the defend-
4 ant, (ii) the substitution of a portion or summary of the infor-
5 mation for such classified documents, or (iii) the substitution
6 of a statement admitting relevant facts that the classified in-
7 formation would tend to prove, unless the court determines
8 that disclosure of the classified information itself is necessary
9 to enable the defendant to prepare for trial. The Govern-
10 ment's motion and any materials submitted in support thereof
11 shall, upon request of the Government, be considered by the
12 court in camera and shall not be disclosed to the defendant.
13 (2) If, pursuant to this procedure, any information is
14 withheld from the defendant and the defendant objects to
15 such withholding, and the trial is continued to an adjudication
16 of guilt of the defendant, the entire unaltered text of the rele-
17 vant documents as well as the Government's motion and any
18 materials submitted in support thereof shall be preserved by
19 the United States and, in the event the defendant appeals,
20 shall be made available to the appellate court for its examina-
21 t.ion in camera for the purpose of reviewing the determiiiation
22 of the trial judge.
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1 NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE
2 CLASSIFIED INFORMATION
3 SEC. 5. (a) NOTICE BY DEFENDANT.-If a defendant
4 reasonably expects to disclose or to cause the disclosure of
5 classified information in any manner in connection with any
6 trial or pretrial proceeding involving the criminal prosecution
7 of such defendant, the defendant shall, within the time speci-
8 fied by the court or where no time is specified within thirty
9 days prior to trial, notify the attorney for the Government
10 and the court in writing. Whenever a defendant learns of
11 additional classified information he reasonably expects to dis-
12 close at any such proceeding, he shall notify the attorney for
13 the Government and the court in writing as soon as possible
14 thereafter. Such notice shall include a brief description of the
15 classified information. No defendant shall disclose any infor-
16 mation known or believed to be classified in connection with
17 a trial or pretrial proceeding until notice has been given
18 under this subsection and until the Government has been af-
19 forded a reasonable opportunity to seek a determination pur-
20 suant to the procedure set forth in section 6 of this Act.
21 (b) FAILURE TO COMPLY.-If the defendant fails to
22 comply with the requirements of subsection (a), the court
2B,; may- preclude disclosure- of any classified information not
24 . made. the subject; of notification and may prohibit the : exami-
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1 nation by the defendant of any witness with respect to any
2 such information.
3 IN CAMERA PROCEDURE FOR CASES INVOLVING
4 CLASSIFIED INFORMATION
5 SEC. 6. (a) MOTION FOR IN CAMERA PROCEEDING.-
6 Within the time specified by the court for the filing of a
7 motion under this section, the Government may move for an
8 in camera proceeding concerning the use at trial or any pre-
9 trial proceeding of any classified information. Thereafter,
10 either prior to or during trial, the court for good cause shown
11 may grant the Government leave to move for an in camera
12 proceeding concerning the use of additional classified infor-
13 mation.
14 (b) DEMONSTRATION OF NATIONAL SECURITY
15 NATURE OF THE INFORMATION.-In order to obtain an in
16 camera proceeding, the Government shall submit the classi-
17 fied information to the court for its examination in camera
18 and shall demonstrate in an ex parte proceeding that the dis-
19 closure of the information reasonably could be expected to
20 cause damage to the national security in the degree required
21 to warrant classification under the applicable Executive
22 order, statute, or regulation.
23 (C) IN CAMERA PROCEEDING.-(1) Upon finding that
24 the Government has met the standard set forth in subsection
25 (b) with respect to some or all of the classified information
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1 submitted to the court, the court shall conduct an in camera
2 proceeding. Prior to the in camera proceeding, the Govern-
3 ment shall provide the defendant with notice of the informa-
4 tion that will be at issue. This notice shall identify the specif-
5 is classified information that will be at issue whenever that
6 information has previously been made available to the de-
7 fendant in connection with pretrial proceedings. The Govern-
8 ment may describe the information by generic category, in
9 such form as the court may approve, rather than identifying
10 the specific information of concern to the Government when
11 the Government has not previously made the information
12 available to the defendant in connection with pretrial pro-
13 ceedings. Following briefing and argument by the parties to
14 the court in camera, the court shall determine whether the
15 information may be disclosed at the pretrial or trial proceed-
16 ing. Where the Government's motion under subsection (a) is
17 filed prior to the trial or pretrial proceedings, the court shall
18 rule prior the commencement of the relevant proceeding.
19 (2) Unless the court makes a specific, written determi-
20 nation that the information is relevant and material to an
21 element of the offense or a legally cognizable defense and is
22 otherwise admissible in evidence, the information may not be
23 disclosed. or elicited at a.pretrial or trial proceeding and the
24 record of the in camera, proceeding shall be sealed, and pre
25 served by the Government in the event of an appeal. The
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13
14
15.
16
17
18
1 defendant may seek reconsideration of the court's determina-
2 tion prior to or during trial.
3 (3) If the court makes a determination under subsection
4 (c)(2) that would permit disclosure of the information or if the
5 Government elects not to contest the relevance, materiality,
6 and admissibility of the classified information, the Govern-
7 ment may proffer a statement admitting for purposes of the
8 proceeding any relevant facts such information would tend to
9 prove or may submit a portion or summary to be used in lieu
10 of the information. The court shall order that such statement,
11 portion, or summary be used by the defendant in place of the
12 classified information unless it finds that use of the classified
information itself is necessary to afford the defendant a fair
trial.
19 order may include, but need not be .limited to an order-
20 (i) striking or precluding all or part of the testimo-
21 ny of a witness; or
22 (ii) declaring a mistrial; or
23 (iii) finding against the Government on any issue
24 as to which the evidence is relevant and material to
25 the defense; or
(4) If the court determines that these alternatives to full
disclosure may not be used and the Government. continues to
object to disclosure of the information, the court shall issue
any order which the interests of justice require. Such an
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1
(iv) dismissing the action, with or without preju-
2
dice; or
3
(v) dismissing specified counts of the indictment
r
4
against the defendant.
5 Any such order shall permit the Government to avoid the
6 sanction for nondisclosure by agreeing to permit the defend-
7 ant to disclose the information at the pertinent trial or pre-
8 trial proceeding. The Government may exercise its right to
9 take an interlocutory appeal prior to determining whether to
10 permit disclosure of any classified information.
11 INTERLOCUTORY APPEAL
12 SEC. 7. (a) An interlocutory appeal by the United States
13 taken before or after the defendant has been placed in jeop-
14 ardy shall lie to a court of appeals from a decision or order of
15 a district court in a criminal case requiring the disclosure of
16 classified information, imposing sanctions for nondisclosure of
17 classified information, or refusing a protective order sought
18 by the United States to prevent the disclosure of classified
19 information, if the Attorney General, Deputy Attorney Gen-
20 eral, or designated Assistant Attorney General certifies to
21 the district court that the appeal is not taken for purposes of
22 delay.
23 (b) An appeal taken pursuant to this section either
24 before or during trial shall be expedited by the court of ap-
25 peals. Prior to trial, an appeal shall be taken within ten days
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1 after the decision or order appealed from and the trial or
2 relevant pretrial proceeding shall not commence until the
3 appeal is resolved. If an appeal is taken during trial, the trial
4 court shall adjourn the trial until the appeal is resolved and
5 the court of appeals (i) shall hear argument on such appeal
6 within four days of the adjournment of the trial, (ii) may dis-
7 pense with written briefs other than the supporting materials
8 previously submitted to the trial court, (iii) shall render its
9 decision within four days of argument on appeal, and (iv) may
10 dispense with the issuance of a written opinion in rendering
11 its decision. Such appeal and decision shall not affect the
12 right of the defendant, in a subsequent appeal from a judg-
13 ment of conviction, to claim as error reversal by the trial
14 court on remand of a ruling appealed from during trial.
15 INTRODUCTION OF CLASSIFIED INFORMATION
16 SEC. 8. (a) CLASSIFICATION STATUS.-Writings, re-
17 cordings, and photographs containing classified information
18 may be admitted into evidence without change in their classi-
19 fication status.
20 (b) PRECAUTIONS BY COURT.-The court, in order to
21 prevent unnecessary disclosure of classified information in-
22 volved in any criminal proceeding, may order admission into
23 evidence of only part of a writing, recording, or photograph,
24 or may order admission into, evidence of the whole writing,
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1 recording, or photograph with excision of some or all of the
2 classified information contained therein.
3 (C) CONTENTS OF WRITING, RECORDING OR PHOTO-
4 GRAPH.-The court may permit proof of the contents of a
5. writing, recording, or photograph that contains classified in-
6 formation without requiring introduction into evidence of the
7 original or a duplicate.
8 (d) TAKING OF TESTIMONY.-During the examination
9 of a witness in any criminal proceeding, the Government may
10 object to any question or line of inquiry that may require the
11 witness to disclose classified information not previously found
12 to be relevant and material to the defense. Following such an
13 objection, the court shall take such suitable action to deter-
14 mine whether the response is admissible as will safeguard
15 against the compromise of any classified' information. Such
16 action may include requiring the Government to provide the
17 court with a proffer of the witness' response to the question
18 or line of inquiry and requiring the defendant to provide the
19 court with a proffer of the nature of the information he seeks
20 to elicit.
21 SECURITY PROCEDURES TO SAFEGUARD AGAINST COM-
22 PROMISE OF CLASSIFIED INFORMATION DISCLOSED
23 TO..THE COURT
24 SEC. 9. (a) Within one hundred twenty days of the date
25 of enactment of= this Act, the - Chief Justice of the United
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1 States, in consultation with the Attorney General, the Direc-
2 tor of Central Intelligence, and the Secretary of Defense,
3 shall prescribe security procedures for protection against the
4 compromise of classified information submitted to the Federal
5 district courts, the courts of appeals, and the Supreme Court.
6 (b) Until such time as procedures are promulgated pur-
7
suant to subsection (a), the Federal courts shall in each case
8 involving classified information adopt procedures to protect
9 against the compromise of such information. Such procedures
10 may include, but need not be limited to, those set forth in
11 section 4(a) of this Act.
12 JENCKS ACT EXCEPTION FOR CLASSIFIED INFORMATION
13 SEC. 10. (a) Section 3500 of title 18, United States
14 Code, is amended by adding after subsection (c) the following
15 new subsection:
16 "(d) If the United States claims that any statement or-
17 dered to be produced under this section contains classified
18 information, the United States may deliver such statement
19 for the inspection of the court in camera Ad provide the
20 court with an affidavit identifying the portions of the state-
21 ment that are classified and the basis for the classification
22 assigned. If the court finds (1) that disclosure of any portion
23 of the statement identified by the Government as classified
24 could reasonably be expected to cause damage to the national
25 security in the degree required to warrant classification. under
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1 the applicable Executive order, statute, or regulation, and (2)
2 that such portion of the statement is consistent with the wit-
3 ness' testimony, the court shall excise the portion from the
4 statement. With such material excised, the court shall then
5 direct delivery of such statement to the defendant for his use.
6 If, pursuant to such procedure, any portion of such statement
21
22
is withheld from the defendant and the defendant objects to
such withholding, and the trial is continued to an adjudication
of the guilt of the defendant, the entire text of such statement
as well as the affidavit submitted by the United States shall
be preserved by the United States and, in the event the de-
fendant appeals, shall be made available to the court of ap-
peals for its examination for the purpose of determining the
correctness of the ruling of the trial judge. Whenever any
statement is delivered to a defendant pursuant to this section,
the court in its discretion, upon application of said defendant,
may recess proceedings in the trial for such time as it may
determine to be 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:
23
(1) Present subsections 3500(d) and 3500(e) are
24
redesignated
subsections 3500(e) and 3500(f),
25
respectively.
-
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1 (2) In new subsection 3500(e), following the word
2 "under" replace "subsection (b) or (c)" with "subsec-
3 tion (b), (c), or (d)".
4 (3) In new subsection 3500(f), following the words
5 used in" replace "subsection (b), (c), and (d)" with
6 "subsection (b), (c), (d), and (e)".
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96TII CONGRESS S
1ST SESSION
.1482
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. BAYH, 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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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 oration.
10 PRECEDURE FOR CASES INVOLVING CLASSIFIED
11 INFORMATION
12 SEC. 6. (a) MOTION FOR HEARING.-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 inwhich the information at issue
23-.:may be used: in a. trial or- pretrial:: proceeding. As to:each item
24::. of classified information, the. court shall set forth inwriting..
25 the basis for its determination. Where the Government's
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I 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 The court, may =place the Government ?under a continuing
23 .. dutyto,disclose. such ~rebuttal`-informatiom If-the Government
24 fails to comply.: with its, obligation--under this subsection; 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
11 information, if the Attorney General, Deputy Attorney Gen-
12 eral, or designated Assistant Attorney General certifies to
13 the district. court that the appeal is not taken for purposes of
14 delay.
15 (b) An. appeal taken pursuant to this' section either
16, before or during trial shall be' expedited by the court of ap-
17 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
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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13
14
15
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
prevent unnecessary disclosure of classified information in-
volved in any criminal proceeding, may order admission into'
evidence of only part of a writing, recording, 'or photograph,
or may order admission into evidence of the whole writing,
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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204
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
12 Director of Central Intelligence, and the Secretary of De-
13 fense, shall prescribe security procedures for protection
14 against the compromise of classified information submitted to
15 the Federal district courts, the courts of appeals, and the
16 Supreme Court.
17 (b) Until such time as procedures are promulgated pur-
18 suant to subsection (a), the Federal courts shall in each case
19 involving classified information adopt procedures to protect
20 against the compromise of such information.
21 JENCKS ACT EXCEPTION FOR CLASSIFIED INFORMATION
22 SEC. 10...(a) Chapter 223--of, title 18, United States
23 Code, is amended by-adding after subsection 3500(c) the.fol_
24 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 dure, 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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1 reasonably required for the examination of such statement by
2 said defendant and his preparation for its use in the trial.".
3 (b) Chapter 223 of title 18, United States Code, is
4 amended as follows:
5 (1) Present subsections 3500(d) and 3500(e) shall
6 be redesignated subsections 3500(e) and 3500(f), re-
7 spectively.
8 (2) In new subsection 3500(e), following the word
9 "under" replace "subsection (b) or (c)" with "subsec-
10 tion (b), (c), or (d).".
11 (3) In new subsection 3500(f), following the words
12 "used in" replace "subsection (b), (c), and (d)" with
13 "subsection (b), (c), (d), and (e).".
14 IDENTIFICATION OF INFORMATION RELATED TO THE
15 NATIONAL DEFENSE
16 SEC. 11. In 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 of 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 cluding 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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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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JENCKS ACT
? 3500. Demands for production of statements and reports of wit-
nesses
(a) In any criminal prosecution brought by the United States, no
statement or report in the possession of the United States which was
made by a Government witness or prospective Government witness
(other than the defendant) shall be the subject of subpena, discov-
ery, or inspection until said witness has testified on direct examina-
tion in the trial of the case.
(b) After a witness called by the United States has testified on
direct examination, the court shall, on motion of the defendant, order
the United States to produce any statement (as hereinafter defined)
of the witness in the possession of the United States which relates to
the subject matter as to which the witness has testified. 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.
(c) If the United States claims that any statement ordered to be
produced under this section contains matter which does not relate
to the subject matter of the testimony of the witness, the court shall
order the United States to.d'eliver such statement for the inspection
of the court in camera. Upon such delivery the court shall excise
the portions of such statement which do not relate to the subject
matter of the testimony of the witness. With such material excised,
the court shall then direct delivery of such statement to the defend-
ant for his use. If, pursuant to such procedure, any portion of such
statement is withheld from the defendant and the defendant objects
to such withholding, and the trial is continued to an adjudication of
the guilt of the defendant, the entire text of such-statement shall be
preserved by the United States and, in the event the defendant ap-
peals, shall be made available to the appellate court for the purpose
of determining the correctness of the ruling of the trial judge.
Whenever any statement is delivered to a defendant pursuant to this
section, the court in its discretion, upon application of said defend-
ant, may recess proceedings in the trial for such time as it may deter-
mine to be reasonably required for the examination of such statement
by said defendant and his preparation for its use in the trial.
(d) If the United States elects not to comply with an order of the
court under subsection (b) or (c) hereof to deliver to the defendant
any such statement, or such portion thereof as the court may direct,
the court shall strike from the record the testimony of the witness,
and the trial shall proceed unless the court in its discretion shall
determine that the interests of justice require that a mistrial be
declared. . _ '
(e) The term "statement", as, used in subsections (b), (c), and (d)
of this section in relation to any witness called by the United States,
means
(1) a written statement made by said witness and signed or
otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording,
or a transcriptfon thereof, which is a substantially verbatim re-
cital of an oral statement made by said witness and recorded
contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcrip-
tion thereof, if any, made-by said witness to a grand jury;
Added Pub.L. 85-269, Sept. i,'1957, 71 Stat. 695, and amended Pub.L.
91-452, Title I, ? 102, Oct. 15,1970, 84 Stat. 926.
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(a) Notice by Defendant. Upon written demand of the attor-
ney for the government 'stating the time, date, and place at
which the alleged offense was committed, the defendant shall
serve within ten days, or at such different time as'the,court may
direct, upon the attorney for the government a written notice
of his intention to offer a defense of alibi. Such notice by the
defendant shall state: the specific place or places at which the
defendant claims to have been at the time of the alleged offense
and the names and addresses of the witnesses upon whom he in-
tends to rely to establish such alibi. '
(b) Disclosure of Information and Witness. Within ten'days
thereafter, but in no event less than ten days before trial, unless
the court otherwise directs, the attorney for the government
shall serve upon the defendant or his attorney a written notice
stating the names and addresses of the witnesses upon whom the
government intends to rely to establish the defendant's presence
at the scene of the alleged offense and any other witnesses to be
relied. on to rebut testimony of any of the defendant's alibi wit-
nesses.
(c) Continuing Duty to Disclose. If prior to or during trial, a
party learns of an additional witness whose identity, if known,
should have been included in the information furnished under
subdivision (a) or (b), the party shall promptly notify the other
party or his attorney of the existence and identity of such addi-
tional witness.
(d) Failure to Comply. Upon the failure of either party to
comply with the requirements of this rule, the court may ex-
dude the testimony of any undisclosed witness offered by such
party as to the defendant's absence from or presence at, the
scene of the alleged offense. This rule shall not limit the right
Added April 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975,
Pub.L. 94-64, ? 3(13), 89 Stat. 372.
Effective Date
Itule cffecticr December 1, 1975, see Order of Supreme Court of
April 22, 1975. wind Congresstonni action on Amendment:, set out on
page 16.
of the defendant to testify in his own behalf.
(e) Exceptions. For good cause'shown, the court may grant
an exception to any of the requirements of subdivisions (a)
through (d) of this rule.
(f) Inadmissibility of Withdrawn Alibi Evidence of an inten-
tion to rely upon an alibi defense, later withdrawn, or of state-
ments made in connection with such intention, is not admissible
in any civil or criminal proceeding against the person who gave.
Judicial Constructions and Advisory Committee Notes, see Title 18 U.S.C.A.
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Rule 12.2
NOTICE OF DEFENSE BASED UPON MENTAL CONDITION
(a) Defense of Insanity. If a defendant intends to rely upon
the defense of insanity at the time of the alleged crime, he shall,
within the time provided for the filing of pretrial 'motions or at
such later time as the court may direct, notify the:attorney for
the government in writing of such intention and file'--a copy of
such notice with the clerk. If there is a failure to comply with
the requirements of this subdivision, insanity may not be raised
as a defense.i6 The court may for cause shown allow late filing
of the notice or grant additional time to the parties to prepare
for trial or make such other order as may be appropriate.
(b) Mental Disease or Defect Inconsistent with the Mental
Element Required for the Offense Charged. If a defendant in-
tends to introduce expert testimony relating to a mental disease,
defect, or other condition bearing upon the- issue of whether he
had the mental state required for the offense charged, he shall,
within the time provided for the filing of pretrial motions or at
such later time as the court may direct, notify. the attorney for
the government in writing of such intention and file a copy of
such notice with the clerk. The court may for cause shown al-
low late filing of the notice or grant additional time to the parties
to prepare for trial or make such other order as may be. appro-
priate.
(c) Psychiatric Examination. In an appropriate case the
court may, upon motion of the attorney for the government, or-
der the defendant to submit to a psychiatric examination by, a
psychiatrist designated for this purpose in the order of the court.
No statement made by the accused in the course of any exami-
nation provided for by this rule, whether the examination shall
be with or without the consent of the accused, shall be admitted
in evidence against the accused on the issue of guilt in any crim-
inal proceeding.
(d) Failure to Comply. If there is a failure to give notice
when required by subdivision (b) of this rule or to submit to an
examination when ordered under subdivision (c) of this rule, the
court may exclude the testimony of any expert witness offered
by the defendant on the issue of his mental state.
Added April 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975,
Pub.L. 94-64, ? 3(14), 89 Stat. 373.
Judicial Constructions and Advisoiy"Committee Notes, see Title l8 U.S.C.A.
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FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 16.
DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by the Government.
(1) Information Subject to.Disclosure.
(A) Statement of Defendant. Upon request of a de-
fendant the government shall permit the defendant to
inspect and copy or photograph: any relevant written
or recorded statements made by the defendant, or
copies thereof, within the possession, custody or control
of the government, the existence of which is known, or
by the exercise of due diligence may become known, to
the attorney for the government; the substance of any
oral statement which the government intends to offer
in evidence at the trial made by the defendant whether
before or after arrest in response to interrogation by
any person then known to the defendant to be a govern-
ment agent; and recorded testimony of the defendant
before a grand jury which relates to the offense
charged. Where the defendant is a corporation, part-
nership, association or labor union, the court may grant
the defendant, upon its motion, discovery of relevant
recorded testimony of any witness before a grand jury
who (1) was, at the time of his testimony, so situated
as an officer or employee as. to have been able legally
to bind the :defendant in respect to conduct constituting
the offense; or* (2) was, at the time of the offense, per-
sonally involved in the alleged conduct constituting the
offense and so situated as an officer or employee as to
have been able legally to bind the defendant in respect
to that alleged conduct in which he was involved.
Judicial Constructions and Advisory Committee Notes, see Title 18 U.S.C.A.
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Rule 16
(B) Defendant's Prior Record. Upon request of the
defendant, the government shall furnish to the defend-
ant such copy of his prior criminal record, if any, as is
within the possession, custody, or control of the govern-
ment, the existence of which is known, or by the exer-
cise of due diligence may become known, to the attor-
ney for the government. `
(C) Documents and Tangible Objects. Upon request
of the defendant the government shall permit the de-
fendant to inspect and copy or photograph books, pa-
pers, documents, photographs, tangible objects, build-
$hgs or places, or copies or. portions thereof, which are
within the possession, custody or control of the govern-
ment, and which are material to the preparation of his
defense or are, intended for use by the government as
evidence in chief at the trial, or were. obtained from or
belong to the defendant.
(D) Reports of Examinations and Tests. Upon re-
quest of a defendant the government shall permit the
defendant to inspect and copy or photograph any re-
4sults or reports of physical or mental examinations, and
of scientific tests or experiments, or--copies thereof,
which are within.the possession, custody, or control
of the government, the existence of which is known, or
trial.
by the exercise of due diligence may become known,
to the attorney,.. for the government, and which are ma-
terial to the preparation of the defense or are intended
for use by the government as evidence in chief at the
(2) Information Not Subject to Disclosure. Except as
provided in paragraphs (A), (B), and (D) of subdivision
(a) (1), this rule does not authorize the discovery or inspec-
tion of reports, memoranda, or other internal government
documents made by the attorney for the government or
other government agents in connection with the investiga-
tion or prosecution of the case, -or of statements made by
government witnesses or prospective government witnesses
except as provided in 18 U.S.C. ? 3500.
(3) (rand Jury Transcripts. Except as provided in Rule
6 and subdivision .(a) (1) (A) of this rule, these rules do not
relate to discovery or inspection of recorded proceedings of
a grand jury.
Judicial Constructions and Advisory Committee Notes, see Title IS U.S.C.A.
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Rule 16 ' itiri.Es OF 'CRIMINAL M CEDURE
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.'
(A) Documents and Tangible Objects.. If the defend-
ant requests disclosure under subdivision (a) (1) (C) or
(D) of this rule, upon compliance with such request by
the government, the defendant, on request of the gov-
ernment, shall permit the government tp inspect and
copy or photograph books, papers, documents, photo-
graphs, tangible objects, or copies or portions thereof,
which are within the possession, custody, or control of
the defendant and which the defendant intends to in-
troduce as evidence in chief at the trial.
(B) Reports of Examinations and Tests. If the de-
fendant requests disclosure under subdivision (a) (1)
(C) or (D) of this rule, upon compliance with such re-
quest by the government, the defendant, on request of
the government, shall permit the government to inspect
and copy or photograph any results or reports of physi-
cal or mental examinations *and of scientific tests or ex-
periments made in connection with the 'particular case,
or copies thereof, within the possession or control of
the defendant, -which the defendant intends to intro-
duce as evidence' in chief at the trial or which were
prepared by a witness whom the defendant intends to
call at the trial when the results or reports relate to his
testimony.
(2) Information Not Subject to Disclosure. Except as to
scientific or medical reports, this subdivision does. not au-
thorize the discovery or inspection of reports, memoranda,
or other internal defense documents made by the defend-
ant, or his attorneys or agents in connection with the in-
vestigation or defense of the case, or of statements made
by the defendant, or by government or defense witnesses, or
by prospective government or defense witnesses, to the de-
L JIU4UL, nis agents or attorneys.
(c) Continuing Duty to Disclose.. If, prior to or during trial,
a party discovers additional evidence or material previously re=
quested, or ordered, which is subject to discovery or inspection
under this rule, he shall. promptly notify the other party or his
attorney or the court of the existence of the additional evidence
or material.
Judicial Constructions and Advisory Committee Notes, see Title 18 U.S.C.A.
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ARRAIGNMENT sdRule 16
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient
showing the court may at any time order that the discovery
or inspection be denied, restricted, or deferred, or make such
other order as is appropriate. Upon motion by a party, the
court may permit the party to make such showing, in whole.
or in part, in the form of a written statement` to be inspected
by the judge alone. If the court enters an order grai?ting
relief following such an ex parte showing, the entire text of
the party's statement shall be sealed and preserved in the
records of the court to be made available to the appellate
court izythe event of an appeal. -
(2) Failure to Comply with a Request. If at any time
during the course of the proceedings it is brought to the at-
tention of the court that a party has failed to comply with .`
this rule, the court may order such party to permit the dis-
covery or inspection, grant a continuance, or prohibit the
party from introducing evidence not disclosed, or it may
enter such other order as it deems just under the circum-
stances. The court may specify the time, place and manner
of making the discovery and inspection and may prescribe
such terms and conditions as are just.
(e) Alibi ;Witnesses. Discovery of alibi witnesses is governed
by Rule 12:1. '
Amended Feb. 28966, eff. July 1;.1966; April 22, 1974, eff.
Dec. 1, 1975; Jul; y 31, 1975, Pub.L. 94-64, ? 3(20)-(28), 89 Stat.
374,375; Dec. 12,1975, Pub.L. 94-149, ? 5,89 Stat. 806.
1966 Amendment
} Reworded and greatly expanded this rule. Prior thereto the rule
read: "Upon motion of a defendant at any time after the filing of the
Indictment or Information, the court may order the attorney for the
government to permit the defendant to Inspect and copy or photo-
graph designated books, papers, documents or tangible objects, ob-
tained from or belonging to the defendant or obtained from others by
seizure or by process, upon a showing that the Items sought may be
material to the preparation of his defense and that the request is rea-
sonable. The order shall specify the time, place and manner of
making the Inspection and of taking the copies or photographs and
may prescribe such terms and conditions as are just."
1975 Amendments
Pub.L. 94-149 struck put paragraph (4) of subdivision (a) and
paragraph (3) of subdivision (b) which paragraphs related to fail-
ure to call a witness.
Judicial Constructions. and Advisory 'Committee Notes, see Title 18 U.S.C.A.
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Rule 16 RULES OF CRIMINAL PROCEDURE
Pub.L. 94-61 revised rule generally. to give' greater discovery to
both the prosecution and the defense, incorporating some of the pro-
visions of former subdivisions (a), (b), (c), (d), (e),'-and (g) into new
subdivisions (a), (b), (c), and (d), adding a new subdivision (e) cover-
ing discovery of alibi witnesses, and dropping the provisions of for-
mer subdivision (f) dealing with time of motions, which provisions
were transferred to rule 12.
Effective Date of 1975 Amendment -
Amendment of Rule effective December 1, 1975, see Order of Su=preme Court of April 22, 19T4, and Congressional Action on Amend-
ments, set out on page 16. .
Rule 17.1
PRETRIAL CONFERENCE
At any time after the filing of the indictment or information
the court upon motion of any party or upon its o,.vn motion may
order one or more conferences to consider. such matters as will
promote a fair and expeditious trial. At the conclusion of a
conference the. court shall prepare and file a memorandum of
the matters agreed upon. No admissions made by the defend-
ant or his attorney at the conference shall be used against the
defendant unless the admissions are reduced to writing and signed
by the defendant and his attorney. This rule shall not be in-
voked in the'case of a defendant Who is not represented by counsel.
Added Feb. 28, 1966, eff. July 1, 1966.
Judicial Constructions and Advisory Committee Notes, see Title 18 U.S.C.A.
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217\
FEDERAL RULES OF EVIDENCE
REMAINDER OF OR RELATED WRITINGS OR-RECORDED
STATEMENTS i i
When a writing or recorded statement or part thereof is intro-
duced by a party, an adverse party may require him at that
time to introduce any other part or any other writing or record-
ed statement which ought in fairness to be considered contempo-
raneously with it-
Rule.40I.
DEFINITION OF "RELEVANT EVIDENCEI
"Relevant. evidence" means evidence having any tendency to
make the existence of any fact that is of consequence to the de-
termination of the action more probable or less probable than it
would be without the evidence.'
Rule 402.
RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IR-
RELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise. pro-
vided by the Constitution of the United States, by Act of Con-
gress, by these rules, or by other rules prescribed ,by the Su-
preme Court pursuant to statutory authority. Evidence which is
not relevant is not admissible.
Judicial Constructions and Advisory Committee Notes, see Title 28 U.S.C.A.
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Rule 106.
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FEDERAL RULES OF EVIDENCE
Rule 412
RAPE CASES; RELEVANCE OF VICTIM'S-..PAST BEHAVIOR
(a) Notwithstanding any other provision of law, in a criminal case in
which -a person is accused of rape or of assault with Intent to. commit
rape, reputation or opinion evidence of the past sexual behavior of an
alleged victim of such rape or assault is not admissible.
(b) Notwithstanding any other. provision of: law, in a criminal case
in which a person is accused bf rape or of assault with Intent to commit
rape, evidence of a victim's past sexual behavior other than reputation
or opinion evidence Is also not admissible, unless such evidence other
than reputation or opinion evidence is-
(1) admitted in accordance with subdivisions (c) (1) and (c)'(2)
and Is constitutionally required to be admitted; or
'k.'(2),. admitted in accordance with subbdivision (c)? and is evidence
'(A) past sexual behavior with persons other than the -ac-
cused, offered by the accused upon the issue of whether the
accused was or was not, with respect to the alleged victim, the
source of semen oil injury; or
sented to the sexual behavior with respect to which rape or as-
sault is alleged.
(c) (1) If the person accused of committing rape or assault with Intent
to commit rape intends to offer under subdivision (b) evidence of spe-
cifio Instances of the alleged victim's past sexual behavior, the accused
shall make a written motion to offer such evidence not later than fifteen
days before the date on which the trial in.which such evidence is to be
offered Is scheduled to begin, except that the court may allow the motion
to be made at a later date, including during trial, if the court determines
either that the evidence is newly discovered and could not have been ob-
tained earlier through the exercise of due diligence or that the Issue to
which such evidence relates has newly arisen in the case. Any motion
made under this paragraph shall be served on all other parties and on the
alleged victim. =
(2) The motion described in paragraph (1) shall be accompanied*
a written offer of proof. If. the court determines that the offer of proof
contains evidence described in subdivision (b), the court shall order a
hearing in chambers to determine if such evidence is admissible. At such
bearing the parties may call witnesses, Including the alleged victim, and
offer relevant evidence. Notwithstanding subdivision (b) of rule 104,
if the relevancy of the evidence which the accused seeks to offer in the
trial depends upon the fulfillment of a condition of fact, the court, at the
bearing in chambers or at a subsequent hearing in chambers scheduled
for such purpose, shall accept evidence on the Issue of whether such. con-
dition of fact is fulfilled and shall determine such issue.
(3) If the court determines on the basis of the hearing described in
paragraph (2) that the evidence which the accused seeks to offer is rele-
vant and that the probative value of such evidence outweighs the danger
of unfair prejudice, such evidence.shalt be admissible in the trial to the
extent an order made by the court specifies evidence which may be offered
and areas with respect to which the alleged victim may be examined or
cross-examined..
(d) For purposes of this rule, the term "past sexual behavior" means
sexual behavior other than the sexual behavior with respect to which
rape or assault with intent to commit rape Is alleged.
Added Pub.1. 96-540, 1'2(a), Oct. 28, 1978, 92 Stat, 2046.
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FEDERAL RULES OF EVIDENCE
Rule 1002..
REQUIREMENT OF ORIGINAL
To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by Act of Congress.
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