Classified Evidence—Jose Padilla

There are at least two difficulties in defending an alleged terrorist. One is combating the public’s inclination to assume that a person accused of a crime must automatically be guilty, especially when it is a crime that is considered especially heinous. The other difficulty is obtaining the evidence that the government claims it has against the client. Having access to evidence is a necessity, and in terrorism cases it can be extremely difficult to obtain. US District Court Judge Marcia Cooke has issued an order “intended to stop the disclosure of U.S. national security secrets when classified evidence is turned over to defense attorneys” in the trial of Jose Padilla.^[1]

Reacting to “a motion filed by federal prosecutors seeking tight restrictions on the handling of classified material,” Judge Cooke said her order “would allow lawyers for Padilla and his co-defendants to begin examining secret evidence under special conditions so they can prepare” for their trial which is scheduled to begin in September.^[2] The evidence includes FBI investigations, material provided by foreign governments, “and Padilla’s own words from interrogations during his 3 ½ years in military custody as an ‘enemy combatant.’”^[3] The order, issued under the Classified Information Procedures Act [hereinafter CIPA], is “intended to prevent the public—and in some cases the defendants themselves—from gaining access to U.S. military and intelligence secrets, including the sources of the material and methods used to obtain it,” but prosecutors are “obligated to share with defense lawyers any evidence, classified or not, that is expected to be used at the Padilla trial.”^[4]

CIPA is codified at 18 U.S.C. Appx. (3) §§ 1 et seq. Under CIPA, classified information is defined as “any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security.”^[5] After a motion is filed and a hearing is filed, 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.”^[6]

Upon a “sufficient showing,” the court “may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery … to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.”^[7]

The intent behind the passage of CIPA was the desire to “prevent the problem of ‘graymail,’ where defendants pressed for the release of classified information to force the government to drop the prosecution.”^[8] The law allows the court to “rule on questions of admissibility involving classified information before introduction of the evidence in open court. This procedure … permit[s] the government to ascertain the potential damage to national security of proceeding with a given prosecution before trial.”^[9] Attempts by defendants to argue that CIPA requires the government to make a claim of privilege before making an ex parte in camera submission of the material often fail, as do claims that the government must make a formal claim of state secret privilege to protect the information.^[10]

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[1] Curt Anderson, Judge in Padilla Case Orders Restrictions on Secret Evidence, Daily Comet (Louisiana), Mar. 28, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] 18 U.S.C. Appx. (3) § 1(a).
[6] Id. §§ 2 – 3.
[7] Id. § 4.
[8] United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988).
[9] Id.
[10] Id. at 965-66.