U.S. Senator Benjamin L. Cardin (D-MD), chairman of the Senate Judiciary Terrorism and Homeland Security Subcommittee, today introduced legislation to improve the Classified Information Procedures Act (CIPA).
CIPA was enacted in 1980 with bipartisan support to address the “disclose or dismiss” dilemma that primarily arose in espionage prosecutions when a defendant would threaten the government with the disclosure of classified information if the government did not drop the prosecution.
“Issues have arisen in a number of notable espionage, terrorism and narcotics cases that demonstrate the need for reforms and improvements to this 30-year-old law,”
said Senator Cardin. “Among other things, this legislation will ensure that all classified information, not just documents, will be governed by CIPA, and that prosecutors and defense attorneys will be able to fully inform trial courts about classified information issues that may arise during the course of criminal proceedings.”
Congress updated the procedures concerning the use of classified information in military commission trials in 2009 when it enacted the Military Commissions Act (MCA), but it did not update CIPA at that time.
Senator Cardin’s bill includes the applicable MCA improvements and is designed to ensure that the federal courts will order the disclosure and use of classified information when appropriate.
The bill also explicitly permits trial courts to adopt alternative procedures for the admission of classified information provided that those procedures do not violate a defendant’s fair trial and due process rights.
“I have chaired two Terrorism and Homeland Security Subcommittee hearings over the last two years that have focused on prosecuting alleged terrorists and spies.
The legislation I am introducing today will codify, clarify and unify federal case law interpreting CIPA, and will ensure that CIPA maintains the proper balance between the protection of classified sources, methods and information, and a defendant’s constitutional rights,”
Senator Cardin added.
On May 12, 2010, Senator Cardin chaired a Terrorism Subcommittee hearing which was entitled “The Espionage Statutes: A Look Back and a Look Forward.”
Witness testimony from this hearing can be found here.
On July 28, 2009, Senator Cardin chaired a Terrorism Subcommittee hearing entitled Prosecuting Terrorists: Civilian and Military Trials for GTMO and Beyond.”
The record from this hearing may be found here