So the government can properly evaluate classified information before its disclosure in open court, CIPA section 5(a) requires that a defendant provide notice to the government of her intent to disclose classified information. [31] Failure by the defendant to provide such notice may preclude disclosure of the information or examination of the witness. [32] If the government objects to disclosure allowed by the court, the court must dismiss the indictment or information, unless “the interests of justice would not be served by dismissal.” [33] The court may, however, order other appropriate action instead of dismissing the action. [34]
CIPA specifically protects the examination of a witness who might reveal classified information during examination by the defendant. [35] Section 8(c) allows the government to object to any line of questioning that “may require the witness to disclose classified information not previously found to be admissible.” [36] After such an objection, the court is required to determine if the response by the witness will disclose classified information. [37]
CIPA has withstood constitutional challenge. [38] In United States v. Wilson, [39] the Second Circuit upheld CIPA’s notice provision as applied to a defendant who was barred from testifying about the classified details of his work. [40] The defendant wanted to testify in the district court that the activities for which he was being prosecuted were part of his work for U.S. intelligence. [41] The district court, relying on CIPA, would allow testimony regarding Wilson’s employment by intelligence agencies and involvement in covert operations, but it would not allow that testimony to include details of any operations. [42] The Second Circuit found this situation to be exactly what Congress intended CIPA to cover. [43] Similarly, the Eleventh Circuit upheld the use of CIPA’s notice provision in a prosecution for fraud on the Armed Forces against a defendant who wished to reveal details of classified military intelligence operations. [44]
United States v. Jolliff [45] involved a challenge to the notice provision based on the defendant’s Fifth Amendment privilege against self-incrimination. [46] The defendant asserted that the notice provision required him to reveal classified information to individuals who were not cleared to know such information—namely, the judge and defense counsel—in violation of 18 U.S.C. § 798, which criminalizes such disclosure. [47] The court found that because the judge did not require a security clearance to view the classified information, [48] and because the government had offered to provide the defendant’s attorney a sufficient security clearance, there was no Fifth Amendment violation. [49]
Another challenge to CIPA involved former National Security Advisor John Poindexter, who was prosecuted for his involvement in the Iran-Contra scandal. [50] Poindexter, like those mentioned previously, challenged CIPA’s notice provision as a violation of his Fifth Amendment rights. [51] He also challenged it for violating his rights to counsel, due process, and to confront the witnesses against him. [52] None of these challenges succeeded. [53] The court dismissed Poindexter’s Confrontation Clause challenge, which was based on CIPA’s requirement that Poindexter notify the prosecution of his intention to elicit classified information from prosecution witnesses on cross-examination. [54] In rejecting this challenge, the court stated that the Confrontation Clause provided Poindexter “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” [55]
A more contemporary case, decided after Crawford but before Clark, also addressed the Sixth Amendment issues raised by using classified evidence. In In re Terrorist Bombings of U.S. Embassies in East Africa, [56] the Second Circuit held that the defendant’s Sixth Amendment right to present a defense [57] was not violated even though the defendant himself was not allowed to review the classified information presented by the government. [58] In doing so, the court did not address any of the then-recent Confrontation Clause cases. Instead, the court relied on Chambers v. Mississippi, [59] a case from 1973, for the proposition that “a criminal defendant’s right to cross-examine the witnesses in his case ‘is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’” [60]
CIPA’s passage provided courts an avenue for addressing the issues caused by greymail, and created a process for introducing classified information in criminal proceedings. Classified information can only be introduced at trial if it complies with Constitutional requirements, including the Confrontation Clause. [61] As will be discussed below, the Confrontation Clause’s interpretation changed significantly in the wake of the Court’s decision in Crawford, requiring a reevaluation of exactly what limits remain on the introduction of classified evidence.
how much of the redacted information is truly classified how much is embarrassment and how much is withheld due to ongoing investigations? is the privately funded dossier classified? is statements that page is a foreign russian agent classified or is it a lie? how can the name of the fbi special agent who signed the verification be withheld?
All admissible evidence must be authenticated...what is the provenance of the documents supporting the request for FISA warrants? Can a person be called to testify about what they did, is it classified if it does not include means and methods of intelligence gathering? What about right to fair trial would that not make most everything that is not REALLY classified fair game?
ofcourse it is big news it shuts up the MSM or makes them lie about it and now the public knows what we have surmised for months. regards
rs.
You are ‘cluttering’ the thread because all you post above pertains to ‘classified’ documents.
The partially redacted FISA documents that were released are DECLASSIFIED. Ergo, CIPA does not apply.
The BIG news drop of July alluded to by Q is the DECLASSIFIED partially redacted release of the FOIA documents. Now there is CLEAR INCONTROVERTIBLE OFFICIAL EVIDENCE that those who attempted to rig the 2016 election and then attempt to remove a duly elected President violated the law in seeking FISA approval to do their dirty work.
And not a peep from the Mockingbirds.
It is being implied by the cabal that the investigations are of President Trump; and yet the Manafort trial is of tax fraud, for charges which Rosenstein himself declined to prosecute eight years ago.
Hence, if the classified information is related to ongoing investigations, it may well be of the Deep State.
Trump is a master of the sucker punch. As Q has pointed out in another connection, "How do you introduce evidence into an investigation (legally)?"