United States v. China National Aero-Technology Import and Export Corp.

This matter is before the Court on the government's motion pursuant to Section 4 of the Classified Information Procedures Act to make ex parte submissions to the Court in support of the government's selective redactions from documents it is providing in discovery. The government's motion arises out of the motion of defendant McDonnell Douglas Corporation to compel discovery of two classified documents. The government requests the Court to consider its ex parte submissions both to determine whether its redactions from those two documents, as well as from two additional documents, are proper in view of the government's obligations under Rule 16 of the Federal Rules of Criminal Procedure and under Brady v. Maryland, 373 U.S. 83 (1963), and to determine whether any material that is relevant or material nevertheless was properly withheld to protect its classified nature. The Court must resolve this matter before deciding McDonnell Douglas' motion to compel.

Discovery of classified information under the Federal Rules of Criminal Procedure is governed by the Classified Information Procedures Act ('CIPA'). Section 4 of CIPA provides in relevant part:

The Court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, 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. The Court may permit the United States to make a request in the form of a written statement to be inspected alone.

18 U.S.C. app. 111 # 4 (emphasis added). Section 4 was intended to clarify the Court's powers to oversee discovery in accordance with Rule 16(d)(1) of the Federal Rules of Criminal Procedure. See United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) ("Congress intended section 4 to clarify the court's powers under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery in order to protect national security"). "This Section creates no new rights of or limits on discovery of a specific area of classified information. Rather it contemplates an application of the general law of discovery in criminal cases to the classified information area with limitations imposed based on the sensitive nature of classified information." United States v. Yunis, #67 F 2d 617, 621, (D.C. Cir. 1989). Pursuant to Section 4, the government requests that the Court consider ex parte a classified sworn declaration from a government official as well as a classified memorandum of law setting forth the government's legal bases for redacting portions of the four documents at issue.¹

Under Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure, the government generally must disclose documents of the documents are "material to the preparation of the defendant's defense" or "intended for use by the government as evidence in chief at trial." Rule 16(a)(l)(C), Fed. R. Crim. P.; see also United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998). Section 4 of CIPA nonetheless permits the government to withhold relevant classified information when the government's interests in protecting it from disclosure outweigh its helpfulness to the defense of the accused. See United States v. Klimavicius-Viloris, 144 F. 3d 1249, 1261 (9th Cir. 1998); see also United States v. Yunis 867 F 2d at 623. When that issue is presented for the Court's determination, however, defendants contend that they should be allowed to participate in the debate over the government's withholding of documents in the normal adversarial manner, particularly to inform the Court of their perception of the material's relevance.

The parties present their arguments against the backdrop of the courts' general disfavor of ex parte procedures. See Fed. R. Civ. F. 16, Adv. Comm. Notes (court first "must determine whether an ex parte proceeding is appropriate, bearing in mind that ex parte proceedings are disfavored and not to be encouraged..."); United States v. George, 786 F. Supp. 11, 16 (D.D.C. 1991)("Ex parte proceedings are generally disfavored, even when the federal rules expressly permit them"). Defendants also suggest that there are alternative means under CIPA by which the government's national security concerns could be addressed without using ex parte procedures. In particular, defendants point to Sections 5 and 6 of CIPA, which require notice and a hearing before classified information is introduced at trial, as a better mechanism for ensuring that classified material is protected from public dissemination. See 18 U.S.C. app. 111, ## 5, 6. Defendants argue that Sections 5 and 6 will provide all of the protection against public dissemination that is required, especially in light of the Protective Order that has been entered in this case, the security clearances held by all counsel, and the prior experience of some of the defendants with classified materials.²

The flaw in defendants' arguments, however, is that an adversarial proceeding would defeat the purpose of the government's motion because it would give the defendants access to the very documents at issue in order to litigate the question of whether they are entitled to have such access. CIFA requires first the government and then the Court to balance the helpfulness of the classified information to the accused against the government's interest in its secrecy. See United States v. Sarkissian, 841 F. 2d at 965. When this balance does not favor disclosure, the information should be withheld so that the classified information is fully protected.

If the government were required to turn it over for an adversarial proceeding, it would no longer achieve its goal of avoiding dissemination of the material. See id. ("The legislative history (of CIPA) emphasized that 'since the government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the purpose of the discovery rules'"). While ex parte hearings may be disfavored, in cases involving classified documents such hearings "are part of the process that the district court may use in order to decide the relevancy of the information." United States v. Klimavicius-Viloria, 144 F. 3d at 1261; see also United States v. Yunis, 867 F. 2d at 623 ("(O)ur ex parte in camera review of the classified information ... convinces us that the claim of the government to privilege is a great deal more than merely colorable").

The procedures in Sections 5 and 6 do nothing to prevent the harm of inappropriate pre-trial disclosure through the discovery process because they only control the dissemination of classified material to the public at trial and do not address the release of classified material to defendants in the first instance. The presence of the Protective Order and guarantees of trustworthiness among defense counsel also do not fully protect the government's interest in preventing disclosure of classified information. Any unnecessary dissemination of classified information creates a greater risk that it will be compromised. See United States v. Poindexter, 727 F. Supp. 1470, 1480 a.22 (D.D.C. 1989) ("It should be noted ... that the wide dissemination of masses of sensitive national security documents does present some risk; a number of lawyers, paralegals, secretaries, and clerks, albeit with security clearances for purpose of this case, would presumably be working on these papers"). CIPA's ex parte procedures are intended to allow the Coiurt to determine the extent of the government's discovery obligations without increasing the risk that any material will be unnecessarily disseminated. The Court will consider the government's ex parte submissions under Rule 16 and Section 4 of CIPA.

Under Brady v. Maryland 373 U.S. at 87, the government also must disclose any evidence in its possession that is favorable to the accused and material either to a defendant's guilt or punishment. Favorable evidence for purposes of Brady "Encompasses both evidence that is exculpatory and evidence that could be used to impeach a government witness." United States v. Ramirez, 54 F. Supp. 2d 25, 32 (D.D.C. 1999); see also United States v. Bagley, 473 U.S. 667, 676-77 (1985). It is the government's responsibility in the first instance to determine whether information in its possession is or is not exculpatory. Material that clearly is not may be withheld if not otherwise discoverable under Rule 16 or (at trial) under the Jeacks Act, 18 U.S.C. #3500; evidence that clearly is exculpatory must be disclosed promptly. The government withholds arguably exculpatory information at its peril. See United States v. Ramirez, 54 F.Supp.2d at 33.³

Irrespective of CIPA, for Brady purposes courts generally permit the government to submit any arguably material exculpatory evidence to the Court ex parte to allow the government to obtain judicial approval of its withholding. See United States v. Felt, 491 F. Supp. 179, 184 (D.D.C. 1979) ("The adoption of in camera, ex parte procedures does not threaten the defendants' constitutional right to exculpatory material..."). Such ex parte treatment is appropriate because the disclosure of the material to the defendant for purposes of the Brady analysis would defeat the entire purpose of the government's withholding of the material in the first place. To disclose the information for the purpose of determining whether it must be disclosed is a self-defeating exercise. Cf. Fitzgibbon v. United States Secret Serv., 747 F.Supp. 51. 55-56 (D.D.C. 1990) (to force government to submit more specific affidavits regarding document withheld under FOIA exemption would "cause the very harm the exemption was intended to avoid"). The Court therefore will consider the government's ex parte submissions in reviewing the government's determinations regarding the government's obligations under Brady.

While the Court notes that the government's redactions at first blush appear necessary to protect its intelligence activities, methods and sources, see Redacted Declaration of Barbara A. Duckworth #8-9 (publicly filed version), and that the redacted material seems neither relevant to the pending charges nor exculpatory under Brady, the Court will allow defendants to file briefs regarding the purported relevance and materiality of the redacted information before ruling on the appropriateness of the redactions. Accordingly, it is hereby

ORDERED that the government's motion pursuant to Section 4 of the Classified Information Procedures Act to make ex parte submissions justifying selective redactions from discovery documents is GRANTED: it is

FURTHER ORDERED that the government's ex parte submissions in support of its motion to authorize deletion of specified items of classified information from discoverable documents are accepted for consideration; and it is

FURTHER ORDERED that defendant McDonnell Douglas Corporation shall file its reply in support of its motion to compel and opposition to the government's motion to authorize deletion of specified items of classified information from discoverable documents on or before July 17, 2000. The government may file its reply in support of its motion to authorize deletion of specified items of classified information on or before July 28, 2000.

SO ORDERED.

(Signed)
PAUL L. FRIEDMAN
United States District Judge

DATE: 6/26/00

Footnotes

1. The documents at issue are: (l) a Defense Intelligence Agency ("DIA") memorandum dated July 27, 1994; (2) a DIA intelligence information report dated May 24, 1996; (3) a June 16, 1995 Military Intelligence Digest article titled "China: Aerospace Machine Tool Capacity"; and (4) a National Air Intelligence Center Weekly Aerospace Systems Report dated November 10, 1994.

2. Defendants also argue that the ex parte review of the government's submission would be a waste of judicial resources. The Court disagrees. It would take fewer resources to review the government's papers ex parte, in camera than it would to conduct an adversarial hearing.

3. Neither party addressed whether the Court must weigh the disclosure of Brady material against national security concerns. While it appears to the Court that no statutory restriction on discovery in a criminal case could trump the due process concerns underlying Brady, the parties are welcome to address this issue in future briefs regarding the pending motion to compel.