Why does there need to be a Classified Information Procedures Act? If it’s a crime to take national defense information knowingly and attempt to conceal it from the government, wouldn’t it be enough for the defendant, the jury and the public to see that the document relates to national defense information, isn’t public, by virtue of being classified, and hasn’t been declassified? That is, shouldn’t the document look something like “Nuclear weapons [57 pages blacked out] SECRET”, assuming the mens rea elements were met?
The very simplified answer is that some laws, and therefore some criminal charges for breaking those laws, refer to disclosure not of classified material but of information that could harm national security, full stop, without reference to classified status.
Therefore, in a trial situation, it is necessary to reveal at least some of the content of the document to demonstrate to the jury that national security is legitimately at stake, and that it’s not a classified document that talks about, say, how many vending machines are installed at a given airbase, or something else equally innocuous.
The statute that you’re referring to (the Espionage Act of 1917) actually predates the existence of the formal US classification system (introduced in 1951); and — if I’m not mistaken — it hasn’t been substantially amended since that time. Hence the mismatch between documents that are “classified” and those that are covered under this particular law.
There’s another possible defense I’ve heard the talking heads talking about: the classified information could already have been publicly known at the time (cf. WikiLeaks and similar instances). In such an instance, one could argue that retention of this information couldn’t cause further harm to national security.
It is a bedrock principle of the justice system that the accused is allowed to “confront their accuser” and cross-examine all witnesses and evidence. The prosecution isn’t allowed to say “trust us, we found sensitive documents in the defendant’s house; no, nobody else may see them” any more than they’re allowed to say “trust us, we found the defendant’s fingerprints on the murder weapon; no, the defendant’s expert may not take a look”. This is to prevent a corrupt prosecution from just making stuff up and railroading innocent people. If you think this doesn’t happen, recall Annie Dookhan fabricating drug lab tests out of thin air instead of actually testing the found substances.
The defense can potentially challenge many aspects of a piece of evidence:
Whether it was really found by investigators or planted them
Whether it was really put where it was found by the defendant or someone else
I’m still having trouble figuring out why the judge can’t order in camera the defense to stipulate as to the nature of the docs. “If you want to argue that these weren’t classified or otherwise national-security docs, make that argument to me, and I’ll give it every consideration. Failing to convince me, I will instruct the jury to consider it as fact that these are too vital to national security to be permitted in open court.” The defense could then appeal the judge’s decision to a higher court or to the Supreme Court. How is this depriving the defendant of his rights?
The accused has the right to a trial by jury. If they haven’t waived that by electing a bench trial, forcing them to argue potentially key parts of their case directly to the judge instead of the jury is a massive violation of their right to a trial by jury.
Bear with me here. For practical purposes, the defense must stipulate all sorts of pure, direct evidence is true, though it can’t be seen by a jury. In a murder trial, where the victim has been run through a woodchipper, it is no defense to say that the jury must see the victim’s body or else no trial. Instead, the prosecution can offer up all sorts of expert testimony, DNA results, eyewitnesses to the woodchipper incident and so on. How is such evidence inapplicable here? If Trump had stolen A-bomb secrets, would the jury need to be shown exactly how A-bombs are constructed?
Watergate is a factor. When Nixon was seeking re-election in 1972 he had people breaking laws to aid his campaign. These acts had nothing to do with national security; they were just furthering Nixon’s personal political career.
But when the Watergate burglars were caught and were being investigated, Nixon told the FBI to cease the investigation because it touched on issues of national security - but he said he could not divulge what those national security issues were. But the FBI took him at his word and dropped the investigation.
This demonstrated that it’s not enough for people to simply assume the President is trustworthy and we should accept any claims he makes that something affects national security. If there’s no process of verification, a President can just use a claim of national security to keep anything secret.
Once again I have to explain. “Trust, but verify” means “Don’t trust”. If you trust something you don’t have to verify it. If I’m on trial I would not trust a judge or a prosecutor in any way. I would insist on the prosecution bringing forth the evidence of the crime, as is my absolute right.
One could insist one seeing photographic evidence of the corpse, and complete autopsy results, and exhumation and examination by more experts who would reveal everything discovered in court. Photographs of the documents would be sufficient. I don’t think the entirety of the documents needs to be revealed, but the defendant can require proof that these are documents containing sensitive defense information that should not have been returned.
yes. I just don’t understand why expert testimony and photographs of a dead body (which could conceivably be of a realistic-looking mannequin) are fine for a murder case, but testimony from experts in national security is a violation of the defendant’s rights
Who are the independent experts that can testify that these documents are what the government claims they are? You don’t have to trust the government if they say there’s a dead body, you are entitled to have your own expert examine that body. And that expert can reveal why they made their own determination in court.
I’m confused. I assumed Smith is more than willing to let experts with appropriate clearances review the docs to testify in court that they are what the government is claiming. But I also thought the defense was saying “No, we want the jury to see the docs, or photos of the docs, read them, assure themselves with their own eyes that these are national security documents.” You’re saying that the jury can take the word of national security experts the defense has certified as such?
I get your point. A good example is a drug case. They state toxicologist will test the white powder and come to court and say, “Yes, that’s cocaine, a controlled substance.” I haven’t seen a case where the defense has said, “I shouldn’t have to take your word for it, I want my own test.” That happens all the time in civil cases, and I would think it could happen in a criminal case, but I haven’t seen it. To your example, though, I have seen defense autopsies.
In the document case there are probably ways to redact the documents after viewed by both sides, so the jury and the pubic don’t get the most sensitive stuff (names,etc). We use redacted exhibits in almost every trial.
It may be that the parties stipulate that these are national security documents, or the court rules “as a matter of law” that they are. We’ll know soon enough how it’s handled.
If the issue was that the defendant possessed classified docs vs. national defense info, would it be enough to show the jury a fully redacted document with only the footer showing the classification level and the chain of custody that proves they were found where the government says they were?
Also, in the case of national defense info, since it doesn’t have to be classified, can the jury and the defense (Trump hasn’t been able to hire attorneys with clearance yet, or get his current attorneys cleared, IIUC) simply see the minimum amount which shows that the documents contain national defense info without revealing the juicy bits?
I have never dealt with classified info at a high level, so I don’t know if it’s the case that a document can be so sensitive that absolutely none of it can be revealed in a criminal case without compromising the document. The closest I have come was a job interview for Lockheed where they told me I would need a clearance because I would have access to classified telemetry data.
Does anyone here know?