The Classified Information Procedures Act (CIPA) sets the balancing point between the government’s interest in preventing disclosure of classified information with a criminal defendant’s right to exculpatory material. Although CIPA was originally drafted with espionage cases in mind, the statute has become more commonly associated with terrorism prosecutions. This contextual shift has disrupted CIPA’s interest-balancing formulation by altering the governmental interests at stake. CIPA’s discovery burdens on the defendant are ordinarily constitutionally justified by the strong countervailing state interest in preserving vital national-security information. This concern is less salient with terrorism defendants, who are unlikely to possess state secrets. Accordingly, those defendants may require further reciprocity in discovery procedures to keep the statute within constitutional parameters. This Note examines the ill effects of CIPA’s contextual shift and proposes a set of amendments to alleviate those concerns. Chiefly, this Note suggests an offense-specific CIPA, whereby the procedural mechanisms of the statute are tailored to the offense charged. The three core recommendations of this Note are (1) inclusion of defense counsel in the discovery process and clearer standards to govern discoverability; (2) a limited and qualified declassification requirement in select Foreign Intelligence Surveillance Act cases; and (3) bifurcation of admissibility hearings.
The Classified Information Procedures Act in the Age of Terrorism: Remodeling CIPA in an Offense-Specific Manner,
64 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol64/iss7/4