SECRET AGENT MAN: THE NEED FOR A SPECIALIZED COURT-MARTIAL TO TRY ALL ESPIONAGE-RELATED CRIMES
II. THREE APPLICABLE COURT SYSTEMS
A. Civilian Courts
C. Military Tribunals
III. ATTEMPTED REMEDIES HAVE BEEN UNSUCCESSFUL
A. Confidential Information Procedures Act
B. Issues with the CIPA
C. Oliver North and Thomas Andrew Drakes: Graymailing Around the CIPA
IV. A SPECIALIZED COURT-MARTIAL SYSTEM IS NEEDED
A. Current Court-Martial Procedure
B. A Special, Espionage-Only Court-Martial
C. Specialized Court-Martial and Due Process
D. Remedying CIPA’s Failures
It is 9:45 p.m. on a rainy Sunday night. Mike Thomas, an attorney with the United States Department of Justice, is sitting in his dimly lit office looking over a case file for a hearing he has in front of the federal district court judge in the morning. He takes a sip of his now-stale coffee and sighs, knowing that his case is in serious jeopardy. Terry Smith, a civilian employee of the armed forces, distributed some confidential information to a major international media outlet. The press organization did not publish all of the information, but Mike knows that the media outlet has more than what they have released. What Terry knows — but the media outlet does not realize — is that they both have confidential information connecting other confidential documents to matters of national security. Mike has an affidavit from the Attorney General in his hands, setting forth to the judge reasons why the judge should not allow disclosure of the information on the record. Unfortunately, most of those documents are necessary for Terry to effectively argue his defense. In fact, Mike can see no possibility of Terry winning without having access to the documents based on the claims he has continuously made throughout the discovery process. Mike knows that the judge will not allow the Department of Justice to pursue a case that the defendant cannot possibly defend; however, he also knows publishing the classified documents for the record is out of the question. He braces himself for the probability that the judge will order him to disclose the classified documents or drop the charges against Terry.
This paper claims that the current procedure for trying espionage-related crimes is inadequate. Specifically, this paper argues that the Confidential Information Procedures Act fails to remedy the issues of confidentiality and national security that arise in civilian courts. For that reason, the United States should create specialized court-martial-style courts to try cases of espionage. In this specialized court-martial system, defendants would have access to confidential information crucial to their defense while also allowing the government to protect matters of national security. This would significantly decrease the likelihood of disclosure of confidential governmental information to the public.
First, this article describes the three major styles of courts the United States currently uses: civilian courts, courts-martial, and military tribunals. It also explains why each particular venue is not suited to try cases regarding espionage-related crimes, including the need for transparency in civilian courts and why the United States cannot truly consider military tribunals to pursue these crimes.
Second, this article describes Congress’ past attempts to remedy the problems detailed in the second section. Specifically, it details the Confidential Information Procedures Act, along with the accompanying silent-witness rule. This section of the article further details the flaws of the Act, including how defendants have successfully circumvented the Act in order to force the government’s hand. The paper will use Oliver North, of Iran-Contra fame, and Thomas Andrews Drake as specific examples of the defendant’s ability to “graymail” the government into either reducing or completely dropping espionage charges.
Third, this article demonstrates how the United States should tailor the current court-martial system to make it an effective tool for prosecuting all espionage related crimes. Specifically, the United States could create a special court that deals only with espionage-related crimes. There would be no immediate public access in the specialized court-martial; rather, the public would have access to the redacted record after the end of the proceedings. Although defendants have a right to a public trial, courts have made exceptions to this general rule in certain instances. The United States should simply add espionage-related crimes to the list of those already sequestered from the public. By allowing the public access to a redacted record after the proceedings, the public still enjoys a certain level of transparency. While the public would not have access to the classified documents or be allowed to read confidential testimony, it would be aware that the court-martial tried the defendant for espionage-related crimes. Further, all non-confidential information would remain open to the public. Therefore, the specialized court-martial would be the most effective and secure way to try espionage-related cases without completely sacrificing the right to a public trial.
II. THREE APPLICABLE COURT SYSTEMS
Currently, the United States tries espionage-related cases in two separate forums. The military tries members who divulge national secrets and other classified information via court-martial. Conversely, the United States tries people who are not members of the military or United States citizens in federal courts, assuming it can bring them into the country for trial. A third type of court exists, generally referred to as a military tribunal, but it does not relate to espionage crimes unless the United States is engaged in war.
There are several problems with using these types of court systems to try espionage-related crimes. Those issues include confidentiality, national security and graymail. These issues demonstrate that the United States should employ a new forum for trying espionage related cases. This forum would be a specialized military court that would have the authority to try both military and civilian espionage cases.
A. Civilian Courts
Most people favor a certain level of transparency in the government and court systems. One news source eloquently states:
A government by the people ought to be completely accessible to the people. CSPAN allows Americans to watch much of what Congress does live. The nation is full of local-access channels that provide live coverage of city council meetings and other local government proceedings. Such openness is important for keeping leaders accountable.
While it is important for the government to be open with the public, severe consequences may arise from being too transparent. The notion of placing confidential information into public record is extremely dangerous. Because national security is of utmost importance, we must do what is necessary to protect it. In cases involving classified information, especially information so confidential that a direct link to our national security exists, we must maintain a certain level of confidentiality.
Unless a case in the federal court system involves a minor, the courtroom is generally open to the public and the press. In fact, the defendant has a Sixth Amendment right to a speedy and public trial before a jury of peers. The defendant can waive that right but does not customarily do so. A federal judge can order a closed courtroom during trials that involve sensitive or confidential information; however, even if the judge orders a closed hearing, a large problem still exists: the judge, court reporter, attorneys, and the jury members are all still civilians with no security clearance. Further, there is no way to ensure that the jurors will not discuss the trial with friends and family members once the trial is over. When one person releases confidential information to a group of people, it is difficult to put a stopper in the flow of information and keep it from seeping out into the rest of the public. This is especially true in our current era, when some press organizations will pay high dollar amounts to get information from jurors. If this occurs, in time, all the juror has to do is request that the organization respect his or her anonymity. As discussed in the Pentagon Papers and Bartnicki cases, it is almost impossible to punish media outlets, such as a newspaper or radio program, for publishing information it received. According to the Supreme Court, the right to free speech in many of those situations far outweighs the need to enforce any criminal statute against publishing sensitive information. While the United States could attempt to show that the paper aided enemies to our security by publishing the information, precedent shows that the government is far less likely to pursue cases against media outlets because of the Supreme Court’s desire to protect First Amendment rights.
Another major issue with using civilian courts to prosecute espionage crimes is that the government must produce all information relevant to the criminal charges. In other words, the government must tell the defendant what crime he has committed and why the government believes he has committed that crime. The government must also produce all documentation to support the accusations, regardless of whether the documents are classified. Again, once the government produces those documents, it is nearly impossible to get them back and ensure that they remain confidential.
A final problem with civilian courts trying espionage cases is potentially the most severe problem: the government does not want confidential information leaked to the public. The defendant knows this to be true, so he “graymails” the government by threatening to force the government to release classified information as evidence in the accused’s trial. When this happens, the Department of Justice must make a difficult choice: it can drop the charges against the defendant, or it can proceed forward and risk placing classified documents into the public record. Thus, the government faces a huge risk of leaking confidential information when prosecuting espionage in civilian court.
The current court-martial system is a better option for trying espionage related crimes than the federal court system. Courts-martial have special evidentiary rules that deal specifically with how to handle confidential information and information that affects national security during the process of the trial. A special procedure is in place for notice requirements when parties need to use confidential information during the trial, and special officers are in charge of various security needs during the portions of the trial using the confidential information. Further, while a military defendant does have the right to a public trial, the judge in a court-martial can determine to hold closed hearings to deal with confidential information.
A few problems, however, do still exist within this system. The court-martial system is mainly set up to try defendants who are members of the armed forces, so it does not fully apply to those involved in espionage crimes who are outside of the armed forces’ jurisdiction. There are some instances when a civilian falls under the jurisdiction of a court-martial. Those exceptions generally involve civilian employees of various armed forces branches, but can include spies “in times of war.” Without further clarification, the problem with attempting to prosecute civilian spies in a court-martial arises from the need to accurately define “times of war.”
And so we return to the question of what constitutes [time of] war. Must Congress declare war formally? Does it suffice that Congress make large-scale defense appropriations and pass other laws which indicate that it considers a war to be in progress — even though, perhaps for diplomatic reasons, there is no outright declaration of war? Or is it simply enough that American troops in large numbers are engaged in fighting and dying? . . . Opposed is the traditional aversion to subjecting civilians to trial by military authorities. And ultimately it is the law of war, a branch of the international law recognized among nations, that must provide the answer.
Further, the judge, attorneys, and jury members are all members of the armed forces. While this does satisfy the right to trial by a jury of the defendant’s peers, a few issues remain. The court does not randomly select jurors from a pool. Instead, a commanding officer selects the jurors. The military trains its members to think and act in a certain manner. If the jury members were to acquit the defendant, they might face retribution from commanding officers convinced of the defendant’s guilt. Because following orders plays such a large role, the military system could unduly influence jurors before the trial even begins.
C. Military Tribunals
The armed forces generally use “military tribunals” during wartime to try enemy combatants. They differ from courts-martial in that they are not set up to try members of the armed forces for crimes. They do not act as normal criminal and civil courts; rather, military officers tend to play the parts of judges and jury members at the same time and often times do not accord the defendant the same legal rights as one might be in a court-martial or civilian court. Further, the government generally closes military tribunals to the public because of the serious relation of the crimes to national security.
While the civilian courts, courts martial, and military tribunals act effectively most of the time, the sensitive nature of the information disclosed in espionage cases necessitates a special court for that particular area of criminal law. As this discussion will show, a specifically created court-martial would be an ideal arena for those cases given Congress’ flaws in past attempted remedies.
III. ATTEMPTED REMEDIES HAVE BEEN UNSUCCESSFUL
A. Confidential Information Procedures Act
In an attempt to combat the issue of graymail in civilian courts, Congress enacted the Confidential Information Procedures Act (CIPA) in 1980. CIPA outlines the procedures for determining whether confidential information can be put onto the record or even disclosed at all in a court proceeding. Specifically, CIPA allows the United States to request a special hearing to determine whether the court will require the United States to disclose confidential information. Before conducting that hearing, the United States must provide notice to the defendant, informing him of which confidential information is an issue in the hearing. If the defendant has already had access to the confidential information, then the United States must provide that exact information to the defendant. If the defendant has not previously seen the confidential information, however, then the United States may give a generic description of the confidential information, so long as it meets with the court’s approval.
If the court determines that the United States must disclose confidential information, the United States can make a motion that it be allowed to submit a “statement admitting relevant facts” or a “summary of the specific classified information” rather than the actual confidential information itself. CIPA requires the court to grant that motion if allowing the United States to submit either a statement or a summary will not impair the defendant’s ability to properly defend himself. Further, CIPA entitles the United States to submit an affidavit via the Attorney General explaining that disclosing the specific confidential information would be detrimental to national security. The United States can request that the court examine the Attorney General’s affidavit ex parte. If the court determines that it should not disclose the classified information, then the court seals the information for potential use in an appeal.
There are a few safeguards still in place for the defendant under this act. John Cline, former attorney for Oliver North, notes that “[t]he court must strike a balance between the government’s national security interest and the defendant’s Fifth and Sixth Amendment right to present a defense.” In other words, the court has to seriously consider whether denying the defendant access to confidential information will severely limit his ability to defend himself. If that is the case and the defendant is unable to disclose confidential information, the court can dismiss all charges against the defendant, or the specific charges that directly deal with the confidential documentation. Further, if the court does not dismiss all charges and allow disclosure of confidential information, the court can order the United States to continue to disclose any confidential information that the defendant may need access to in order to rebut any of the United States’ claims.
CIPA also created the silent-witness rule. This rule allows the government to produce evidence to the attorneys and the judge, but not to the jury. Instead, the public does not get to hear certain portions of testimony and does not get to see certain documents in evidence. Further, the silent-witness rule can allow the government to use code words in order to maintain secrecy. This secrecy seriously impairs the defendant’s due process rights because he cannot openly use evidence to defend himself. Rather, he must rely on the jury’s ability to understand code words and secret languages.
B. Issues with the CIPA
Even if the court issues a protective order allowing the government to withhold the confidential information, the public still maintains a First Amendment right of access to view the protective order itself. This allows the public to know that the court is discussing confidential information in the court proceedings and may even provide some clues as to what the confidential information might be.
The court may not consider whether information is classified or confidential when determining if the information is relevant to the case. Therefore, the documents must only pass the relevancy standards outlined in the Federal Rules of Evidence. If the court determines the documents are relevant, it will allow them as evidence unless there is a seriously overriding need to not do so. It is much harder for the United States to show that the information must remain confidential than it is for the defendant to show that it is necessary for his defense. A defendant need only show that the information is “helpful” to his defense for the court to require disclosure. Certainly, a defendant could argue that almost anything would be helpful to his defense. Once the defendant establishes that small requirement, the information must become discoverable. Further, a court can allow disclosure of confidential information if it may help a rational juror conclude that the defendant did not commit a crime.
The secret-witness rule walks a fine line, constitutionally speaking.If the courts allow the government to use code words and redacted documents in a trial, the defense is unfairly prejudiced if it cannot fully dissect that information to create a reasonable doubt for the jury. The Supreme Court, in a discussion on the pros and cons of redacted documents and code words versus the actual, unaltered document as evidence stated in Old Chief v. United States:
Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them.
Further, in the United States v. Fernandez, the Fourth Circuit had to analyze whether substitutions of summaries for actual documents would impair the defendant’s ability to present his argument. In addition to other accusations, the prosecutor accused Fernandez of lying about an airstrip. The court noted:
To address this charge requires Fernandez to paint a concrete and detailed picture of his working environment as he saw it. We agree with Fernandez’s contention that the substitutions would preclude the defense from “present[ing] a coherent case of its own, since it would be shackled to a script written by the prosecution.” If the vague, extremely abbreviated descriptions of the projects were accepted as exclusive substitutes for Fernandez’s own testimony about his role in and understanding of the projects, for classified cables written by him that corroborated his understanding, and for his direct and cross-examination of witnesses involved in these projects, Fernandez’s constitutionally guaranteed ability to present a defense would be severely compromised. 
Additionally, the use of code words and summaries or statements is much more likely to confuse jury members. This is especially true in cases where the parties are referring to multiple classified documents via code words. It could be very difficult for juror members to keep up with those codes and then to analyze the evidence.
While CIPA may make a dent in graymail, the cost is much higher than the reward. The CIPA procedures are not cost-effective because they add lengthy delays to the proceedings. They also create an exorbitant amount of extra paperwork. All of this extra cost and energy should produce better results. Graymail continues to exist, however, and many defendants are still able to force the government to drop the most serious charges against them with the tactic.
C. Oliver North and Thomas Andrew Drakes: Graymailing Around the CIPA
In 1988, a grand jury indicted Oliver North on sixteen different charges, many of which included shredding government documents and illegally altering them. Most of the evidence related to those crimes, however, was classified in nature. Through his attorney, John Cline (who has been referred to in the legal community as a “graymail specialist”), North argued that he would have to disclose confidential information in order to defend himself. Eventually, the United States dropped all of the charges, including those that necessarily dealt with classified documents. Although the jury originally convicted North of three unrelated crimes, the court later overturned those three convictions.
Thomas Andrews Drake is a more recent example of how graymailing is effective in espionage cases, despite Congress’ attempt to stop the tactic with CIPA. In April 2010, a grand jury indicted Drake on several charges, including obstructing justice by shredding documents and deleting computer records. The prosecution wanted to restrict public access to two documents set to be used at trial. In the alternative, the prosecution attempted to invoke the silent-witness rule and force both sides to use code words to maintain the confidentiality of certain information. Further, the prosecution wanted to place strict limitations on cross-examinations — a move which would have severely limited Drake’s ability to defend himself. After the government realized that Drake was going to keep pushing until they agreed to disclose confidential information, the government finally decided to offer Drake a plea deal. The deal dropped serious charges against Drake in favor of a misdemeanor charge.
CIPA has done little to actually stop graymailing tactics in civilian courts. Because the problem still exists, a new remedy is needed. As explained below, the best remedy for everyone involved is a specialized court-martial system created solely for espionage-related crimes.
IV. A SPECIALIZED COURT-MARTIAL SYSTEM IS NEEDED
A. Current Court-Martial Procedure
Courts-martial share some similarities with civilian courts. The Constitutional rights guaranteed to all defendants in a civilian court are also guaranteed to defendants in a court-martial. The proceeding is very similar, with prosecutors, defense attorneys, judges and juries. Several differences, however, do exist between the two.
Nearly everyone involved in the court-martial process is a member of the armed forces. There is no specified courtroom; rather, the court exists wherever the troops are located. In civilian courts, prosecutors determine which cases to pursue. Courts-martial approach prosecutions differently: “[k]ey decisions that in the civilian system would be made by lawyers are made by commanders — who gets prosecuted, on what charges, with what maximum punishment and who is picked to be on the jury.” The process is “command-centric.”
A commander appoints the jury members. Crimes with less severe punishments need a minimum of three jurors. Cases involving serious punishments require five jurors, and death penalty cases require twelve jurors. The jury’s decision does not have to be unanimous. Instead, a verdict requires only a two-thirds majority vote. In a court-martial, the judge does not sentence the defendant. The jury determines the verdict of the trial and the sentence during the same deliberations. The jury can make the sentence as light or harsh as it chooses.
Another difference in the court-martial system makes it a more appropriate venue for espionage related cases. Many of them already have access to classified information. For those that do not have that access already, the evidentiary rules in courts-martial are already geared toward maintaining the confidentiality of classified documents. The Uniform Code of Military Justice specifically created these rules knowing that there would be instances in which the court must hear cases dealing with classified information. In contrast, the majority of civilian court cases do not deal with confidential information with any regularity.
B. A Special, Espionage-Only Court-Martial
The United States should create a special court-martial style procedure for espionage-related crimes that balances the need to protect national security and the defendant’s right to a fair trial. Initial and post-proceeding openness would solve part of the transparency issues for the public. Finally, the appellate process would stem from the current civilian appellate process, giving the civilian defendants accused of espionage every avenue of appeal available to them.
Courts-martial are technically held anywhere troops are located. The United States should create special courts-martial within each federal circuit, preferably in the same city where the circuit’s appellate court is located. While federal circuits do have multiple courts in various districts, espionage cases are not very common. Having multiple courts within each circuit would only increase costs. A single espionage-centric court within each circuit would be more than sufficient to try those cases. Much like the way the military creates a normal court-martial when cases arise, these special courts-martial would only convene if an espionage case arose in that particular circuit.
Various military members within each specific circuit should comprise both the grand jury and the regular jury pools. While not all of those people have clearance to access classified information, they are better suited for analyzing confidential evidence than non-military jurors.
Currently, indictments in civilian courts are a matter of public record. The special court should still publish indictments as a matter of public record. These indictments should not be the full indictments that the prosecution gives to the defendant after the grand jury decides to indict, however. Instead, the court should publish a version of the indictment that simply lists the defendant’s name, what crime the United States has accused him of committing, and the date the proceedings will begin.
In order to ensure that the defendant receives a fair trial, he may choose any attorney he pleases. If he cannot afford one, a military-member version of the public defender would be appointed. If the defendant hires his own attorney, the court will require that attorney to sign an agreement not to disclose any confidential information he encounters during the proceedings.
The court would close proceedings to the public. Additionally, the court would not place any motions, briefs, discovery or pleadings into public record during the entire process, from the time of the indictment until the end of the trial. The court should keep all of these documents secret to encourage both parties to be fully open and honest about the charges and theories of the case.
Once the proceedings conclude, the defendant will have twenty days to file an appeal in that circuit’s appellate court. If the defendant does not file an appeal, the special court will have twenty additional days to redact all confidential information revealed through testimony or through classified documents. Once the court has redacted that information, it would place the file into public record. This would allow the public to have access to the court proceedings and to know all the relevant details without forcing the government to disclose information that could potentially harm national security.
If the defendant decides to appeal the case, the court will not publish the record by the forty-day deadline. Instead, the court will send the sealed record to the appellate court for review. The appellate court will determine if the confidential information bears any relevance to the issues brought on appeal. If the appellate court determines that the confidential information is not relevant to the proceeding and should not be discussed during the appeal, then the court can decide to open the arguments to the public. If the court determines that the confidential information plays a necessary role in the appeal, however, then the appellate court will close the arguments to the public. Either way, the appellate court will continue to withhold the entire record from public view until after the appeal.
Once the appellate court reaches a decision, the defendant can choose to pursue an appeal to the United States Supreme Court. If the defendant does not choose to pursue an appeal, the appellate court will return the entire record to the special court. The special court will then have thirty days to redact the record and place it into the public record. If the defendant chooses to pursue the appeal to the Supreme Court, then the special court will continue to withhold the record. By the time the case reaches the Supreme Court, confidential information should not be an issue, since the court would not bar any of the confidential information from the record unless it is irrelevant to the case. Rather, the issue should relate to specific instances that occurred during the trial. Therefore, the Supreme Court could hold proceedings as normal. After the Supreme Court reaches a final decision, then it will return the entire record to the special court. At this point in time, the special court will have forty days to fully review and redact confidential information from the record before opening it to the public.
Regarding courts-martial for active members of the armed forces stationed outside of the country, the system should work exactly the same way. Whereas normal courts-martial are appealed through a different chain of command, the special court martial should be appealed to the circuit in which the active military member resides. The process for releasing the record to the public would not be any different from the civilian process detailed above.
C. Specialized Court-Martial and Due Process
There are many benefits to the special court-martial system. Protection of national security is certainly the first and foremost benefit associated with this special system. There are a few concerns, however; the most important of which is the right to due process.
The Fifth Amendment states that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Section I of the Fourteenth Amendment shares similar language. The Supreme Court has made it clear that both sections share a similar meaning: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”The Supreme Court has also noted:
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The proposed specialized court-martial system would not violate an individual’s right to due process under the above-referenced three-prong factor test. The first prong analyzes “the private interest that will be affected by the official action.” In the proposed court model, the official action would minimally affect the private interest. Rather, the accused defendant would have access to a fuller defense, because he or she could release more confidential information on the record. The process of sealing and redacting records throughout the process would allow the defendant to present all defenses possible, because there would be no need for the government to attempt to censor the information.
The second factor analyzes “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” The specialized court-martial system would deprive the accused of his right to a fully public trial. That risk, however, weighed against the value of the safeguards created by the special court martial, would be minimal. The accused would still have access to a trial by jury, as required by the Sixth Amendment. Again, the defendant would have access to confidential information in the specialized court-martial that he or she would not have access to in the regular federal court system. So, while the defendant would be deprived of certain liberties in this specialized system, his access to a stronger overall defense would be far more beneficial.
The final factor looks to “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” There is no doubt that the proposed system would create an additional financial burden on the government. Creating an entirely new court system certainly would require a number of resources. However, it would not be the first time Congress has created a court system. In fact, Congress has the Constitutional authority to create courts as it deems necessary. Generally, we refer to these courts as Article I courts. Since the Constitution already allows Congress to create inferior courts, the notion of instituting a specialized court-martial system does not truly create an additional administrative burden. Rather, it is Congress’ duty to create such a court in the event that it is necessary. Additionally, this new procedure would protect the government’s need to maintain confidentiality with regard to matters of national security, because the court would limit the public’s access to the proceedings and would redact the records of the proceedings before releasing them to the public.
The United States Supreme Court addressed Congress’ power to create non-Article III courts in Northern Pipeline Construction Co. v. Marathon Pipe Line Co, where it specifically addressed Congress’ power to create an adjunct bankruptcy court. The Court made it very clear that while it was important to maintain the constitutionally created separation of powers, there are certain circumstances that would allow Congress to create non-Article III courts. The three main circumstances when this Congressional action is appropriate are: 1) Courts in territories where Congress acts as government, 2) military courts, and 3) legislative courts created in situations where Congress could have chosen to give power to the Executive Branch but instead decided to create a court. This specialized court-martial system falls within the second category of Congressional powers under the National Pipeline framework.
Based on the three factors relevant for determining whether a violation of due process exists, this specialized court-martial is not an unconstitutional exercise of power by Congress.
D. Remedying CIPA’s Failures
This specialized court-martial system would remedy the issues CIPA is inadequate to fix. The proposed court system alleviates CIPA’s inability to keep the public from accessing confidential information through the indictment process by allowing for publication of a less detailed indictment. The defendant would still receive a copy of the full indictment, so he would be fully aware of the charges against him, but the public would only have limited knowledge regarding the charges.
CIPA does not always keep confidential information out of court. As addressed earlier, the information needs only to meet the relevancy guidelines in the Federal Rules of Evidence and must only be helpful to the defendant’s case. This allows the defendant to have access to confidential information more often than not in federal civilian courts. Having access to that information is good for the defendant, and that rule should remain unchanged. The issue that arises, however, is that in a federal civilian court, that confidential information becomes unprotected. The court allows the confidential information on the record and civilians with no security clearance hear that testimony and see the evidence. The specialized court-martial system fixes that issue by providing a jury more likely to have access to some confidential information and by creating a redacted record. The public would have access to the record as it would for any other civil or criminal claim and the court would only remove the confidential and classified information from the record.
As discussed earlier, CIPA’s secret-witness rule is seriously flawed. Using code words and secret information causes confusion and hampers the defendant’s ability to pursue a full and accurate defense. The proposed court-martial system eliminates the need for the court to use the secret-witness rule because it provides a more secure court-room and removes the fear associated with publishing confidential information and documentation on the record. By delaying the release of a redacted record, the court can guarantee that it has reviewed the entire record and no classified information makes its way into the public.
Where CIPA fails to fully remedy the problems it addresses, this specialized court-martial fully eliminates the problems of confidentiality and national security. The defendant still has the ability to put on a full defense, complete with access to the confidential information necessary to his or her case. At the same time, the government can take solace in the notion that while the confidential information will be used in trial, the trial will not be open to the public and any and all confidential information will be redacted from the record of the proceedings before the court publishes the record. By creating an environment that is more sensitive to confidential information and ensuring that the public does not have access to information that is potentially vital to the national security, the possibility of graymailing is eliminated. While the public probably will not greet the idea of closed proceedings with open arms, they will at least have access to relevant, non-classified information before and after the proceedings. This special court would not be nearly as secretive as a full-blown military tribunal and would not be so intrusive on defendant’s rights. Similarly, it would not be as open as civilian courts and would not force the United States government to choose between releasing necessarily confidential information and declining to prosecute a criminal. If Mike Thomas, the attorney mentioned in the introduction, had access to such a court, he would not have to be at the office so late on a Sunday night trying to make such a critical choice. He would not have to choose between risking releasing confidential information and dropping all the charges against a, more likely than not, guilty defendant. Instead, he would know that a trial would proceed in a cautionary method and that the court would redact all confidential information and classified documents, especially those related to national security before releasing the record to the public.
Civilian courts should be transparent and open to the public. Because the general need for transparency exists, the Department of Justice should not try espionage-related cases in civilian courts. Congress has attempted to limit the amount of classified information released to the public in civilian courts via the Confidential Information Procedures Act; however, this Act is insufficient to fully protect the United States’ interest in maintaining a certain level of secrecy, especially with regard to issues of national security. The defendant has a much lower burden than the government to show that the court should order the government to produce classified information. This allows the defendant to continue to graymail the government, rendering the Confidential Information Procedures Act useless. Courts-martial already have the authority to hear cases involving civilians who engage in espionage-related crimes during times of war. The most sensible way to try all cases of espionage would be in a specialized court-martial setting. While the public would not have immediate access to the proceeding, the special court-martial could make redacted documentation available to the general public within thirty days of the end of the proceeding. This would ensure that the classified information would not make its way into the public and the defendant would still receive a fair trial without having to use code words or summaries of documents instead of actual testimony and evidence.
* Juris Doctor - University of Mississippi December 2012; B.A. Paralegal Studies – University of Southern Mississippi 2008.
. 10 U.S.C. § 802 (2006).
. 18 U.S.C. §§ 791-799 (2006). Espionage is a federal crime, per the Espionage Act of 1917. Therefore, federal courts have jurisdiction.
. See Ex parte Milligan, 71 U.S. 2, 29 (1866). “[M]ilitary commissions are mentioned in four acts of Congress, but in none of them is any provision made for their organization, regulation, or jurisdiction, further than that it is declared that in time of war or rebellion.”
. Scott Snow, Op-Ed., Allow Cameras in State Courtrooms: Increase Public Access Transparency, Deseret News, July 7, 2012, http://www.deseretnews.com/article/ 765588386 /Allow-cameras-in-state-courtrooms -increase-public-access-transparency.html? pg=all.
. Editorial, Washington, Be Wary of a War on Leaks, L.A. Times, July 23, 2012, http://articles.latimes.com/2012/jul/23/opinion/la-ed-leaks-government-congress-20120723 (“It’s hard to run an intelligence service or fight a war without holding back some information.”). (last visited Oct. 10, 2012).
. Gregg Maisel, National Security, U.S. Dep’t of Justice, http://www.justice.gov/ usao/dc/divisions/criminal_national_security.html (last visited Mar. 24, 2013).
. See Press-Enter. Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 509 (1984) (“Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.”)
. See U.S. Const. amend. VI.
. See Fed. R. Crim. P. 23(a). There are some limitations to waiving the right to a jury trial. In federal court, a defendant can only waive his right to trial if the court and prosecutor consent as well.
. See United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965) (noting that judges have broad discretion to exclude spectators).
. Jane Kirtley, Keeping Jurors’ Lips Sealed, Am. Journalism Rev. (Jan/Feb 1998), available at http://ajr.org/Article.asp?id=1767 (last visited Mar. 24, 2012) ([J]udges have focused on protecting the reputation of the system itself, a far more nebulous and subjective concept. Many are appalled by jurors peddling their stories to the highest bidder or holding press conferences after a trial. Although there are many examples of such post-trial revelations contributing to greater public understanding of the most secretive aspect of our criminal justice system, judges feel that such interviews invade the jury room not to educate, but solely to ‘sell newspapers.’ For the most part, the First Amendment has prevailed. Although judges often instruct jurors at the conclusion of a trial that they are not obliged to talk to anyone about their service, they do have a constitutional right to speak, which doesn’t vanish simply because they have served on a jury. Journalists, too, have First Amendment rights to ask questions in the course of gathering news.”).
. See New York Times Co. v. United States, 403 U.S. 713 (1971). In this case, New York Times and the Washington Post wanted to publish a confidential document received from an inside source. The United States wanted to enjoin both publications from publishing the material. The Court held that prior restraint on speech violated the First Amendment.
. See Bartnicki v. Vopper, 532 U.S. 514 (2001). The Court held that the radio station was within its rights to disclose conversations obtained via wiretap.
. New York Times, 403 U.S. at 726-27.
. Id. at 727.
. See United States v. Nixon, 418 U.S. 683, 711 (1974) (“The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor. Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.”)
. The definition of “graymail” is “a tactic used by the defense in a spy trial, involving the threat to expose government secrets unless charges against the defendant are dropped.” Graymail Definition, Oxford Dictionaries, http://oxforddictionaries.com/ definition/english/graymail (last visited Mar. 23, 2013).
. Henry Mark Holzer, Graymail at Guantanamo, FrontPagemagazine.com (May 05, 2008), http://archive.frontpagemag.com/readArticle.aspx?ARTID=30843 (“For example, in the case of Bush nominee Miguel Estrada to a federal appeals court, Senate democrats employed the graymail tactic by seeking confidential documents generated by Estrada while serving as a lawyer in the Solicitor General’s office of the Department of Justice—documents having little or no relevance to decisions that would be made by a federal court of appeals judge who takes a solemn oath to uphold the Constitution and laws of the United States. The dilemma in the Estrada case for the Executive Branch, and the weapon the democrats’ demand gave them, was this: Either the Department of Justice complied with the Senate democrats’ demand, thus handing them a veritable can of red herring documents they could then use to manufacture yet more excuses to impugn Estrada’s ideological fitness to serve on the DC Circuit, or the government refused to hand over the confidential documents, thus enabling the democrats to complain loudly, as they did, that Estrada and his administration supporters had something to hide.”)
. David Corn, Will Scooter Libby Graymail the CIA?, The Nation (Feb. 06, 2006, 3:06 PM), http://www.thenation.com/blog/156232/will-scooter-libby-graymail-cia#.
. UCMJ and Espionage, Cour-Martial.com, http://court-martial.com/ucmj-and-espionage/ (last visited Mar. 23, 2012).
 Robinson O. Everett, Persons Who Can Be Tried By Court Martial, 5 J. Pub. L. 148, 150 (1956), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1309& context=faculty_scholarship .
. Id. at 148.
. Id. at 156.
. Id. at 158.
. Pete Williams, How The Court Martial System Works, NBCNews.com (May 18, 2004, 6:12:59 PM), http://www.msnbc.msn.com/id/5006458/ns/world_news-mideast_n_ africa/t/how-court-martial-system-works/#.UGoMwVH4Kqg.
. Eric R. Carpenter, Applying the Capital Jury Project Findings to Court Martial-Practice (Nov. 2010). http://www.dtic.mil/dtic/tr/fulltext/u2/a524442.pdf (last visited Oct. 12, 2012). (“In United States v. Loving,possibly the most recognized capital case in the military, the initial vote on a proposed sentence was seven votes for death and one for life. In addition to serving as an example where a minority of 25 percent or less changing votes, the Loving case also demonstrates an important aspect of jury dynamics that can influence minority voters to change their votes. While one should not expect to find overt bullies in a court-martial deliberation room, the military does have a dynamic that resembles that pressure: the dynamic of rank in the deliberation room.” (citations omitted)).
. Military Tribunals, Constitutional Rights Foundation, http://www.crf-usa.org/america-responds-to-terrorism/military-tribunals.html (last visited Mar. 23, 2013).
. Louis Fisher, Cong. Research Serv., RL 32458, Military Tribunals: Historical Patterns and Lessons, passim (2004), available at http://digital.library.unt. edu/ark:/67531/metacrs5797/m1/1/high_res_d/RL32458_2004Jul09.pdf.
. See, e.g., id. at 37 (noting the government’s choice to use a military tribunal in World War II to try Nazi spies considered, inter alia, the fact that it did not want the public to know “how easily German U-boats had reached American shores undetected.”).
. See id.
. See Radack, infra note 52 (stating the Silent Witness Rule offens the defense’s Due Process Rights); Gerstein, infra note 62, 66 (noting the government’s use of special codes that are unknown to the defense prejudices the defense’s ability to creat a reasonable doubt in the minds of the jury).
. John D. Cline & K. C. Maxwell, Criminal Prosecutions and Classified Information, 29 L.A. Lawyer, Sept. 2006, available at http://www.lacba.org/showpage. cfm?pageid=7070.
. See 18 U.S.C. app. 3 § 6 (2006).
. 18 U.S.C. app. 3 § 6(a).
. 18 U.S.C. app. 3 § 6(b)(1).
. 18 U.S.C. app. 3 § 6(b)(2).
. 18 U.S.C. app. 3 § 6(c)(1-2).
. 18 U.S.C. app. 3 § 6(c)(1).
. 18 U.S.C. app. 3 § 6(c)(2).
. 18 U.S.C. app. 3 § 6(d).
. See Cline, supra note 38 (analyzing the procedural safeguards currently in place).
. See Profile: John Cline,infra note 72 (discussing Mr. Cline’s professional background).
. Cline, supra note 38.
. Jonathan M. Lamb, The Muted Rise of the Silent Witness Rule in National Security Litigation: The Eastern District of Virginia’s Answer to the Fight Over Classified Information at Trial, 36 Pepp. L. Rev. 213, 245 (2008) (“From the language of the CIPA, the government crafted the silent witness rule, in which trial participants refer to classified information through the use of a document or “key card” designating code names for classified places, names, or documents. Instead of disclosing a piece of classified information, trial participants use the corresponding code word to indicate a particular reference.Thus, the silent witness rule protects against public disclosure of classified information used as evidence.”)
. Id. at 246-47 (“Under such a rule, the witness would not disclose the information from the classified document in open court. Instead, the witness would have a copy of the classified document before him. The court, counsel and the jury would also have copies of the classified document. The witness would refer to specific places in the document in response to questioning. The jury would then refer to the particular part of the document as the witness answered. By this method, the classified information would not be made public at trial but the defense would be able to present that classified information to the jury. Per the silent witness rule, the trial participants would refer to classified places, names, or documents through the use of code words printed on a “key card” in lieu of the actual information.Therefore, each trial participant could know the classified information of reference by looking at the corresponding information on the key card.The doctrine allows use of the information to the extent necessary for a fair trial while protecting the information from public disclosure because neither the record nor the audience would know the pertinent information.” (citations omitted)).
. Jesselyn Radack, Constitutionally-Questionable “Silent Witness Rule” Approved for Espionage Act Prosecution, Daily Kos (Oct. 04, 2011, 8:13 AM), http://www.dailykos. com/ story/2011/10/04/1022669/-Constitutionally-Questionable-Silent-Witness-Rule-Approved-For-Espionage-Act-Prosecution.
. 18 U.S.C. app. 3 § 3 (2006).
. United States v. Ressam, 221 F. Supp 2d 1252, 1262-65 (W.D. Wash. 2002).
. Cline, supra note 38.
. Id.; see Fed. R. Evid. 401.
. Fed. R. Evid. 401.
. Cline, supra note 38.
. See United States v. Lopez, 738 F. Supp. 1404, 1413 (S.D. Fla. 1990).
. Josh Gerstein, Defense Slams Evidence Plan in NSA Leak Case, Politico (Mar. 14, 2011, 11:41 AM). http://www.politico.com/blogs/joshgerstein/0311/Defense_slams _secret_ evidence_plan_in_NSA_leak_case.html?showall (“The ‘proposed exhibits’ that the government seeks to introduce through the silent witness rule include evidence at the heart of this case,” Wyda and Boardman wrote. “The allegedly classified nature of the government’s propose exhibits will be vigorously challenged on cross examination and by defense witnesses. It will be impossible to effectively contest and dissect the government’s evidence before a jury if the Court permits use of the silent witness rule. It should not”).
. Old Chief v. United States, 519 U.S. 172, 187 (1997).
. United States v. Fernandez, 913 F. 2d 148, 158 (4th Cir. 1990).
. Cf. Gerstein, supra note 66.
. Key Sections of Conspiracy Indictment in Iran-Contra Affair, N.Y. Times, Mar. 17, 1988, http://www.nytimes.com/1988/03/17/world/key-sections-of-conspiracy-indictment-in-iran-contra-affair.html?pagewanted=all&src=pm.
. Profile: John Cline, History Commons, http://www.historycommons.org/ entity.jsp?entity=john
_cline_1 (last visited Mar. 17, 2012).
. See United States v. Poindexter, 698 F. Supp. 316, 319 (1988).
. Ronald J. Ostrow, Charges Against North Dismissed, L.A. Times, Sept. 17, 1991, http://articles.latimes.com/1991-09-17/news/mn-2756_1_independent-counsel.
. Scott Shane, Former N.S.A. Official Is Charged in Leaks Case, N.Y. Times, Apr. 15, 2010, http://www.nytimes.com/2010/04/16/us/16indict.html?_r=0.
. Josh Gerstein, U.S. Seeks to Seal Info in NSA Leak Case, Politico (Mar. 17, 2011, 12:23 AM), http://www.politico.com/blogs/joshgerstein/0311/US_seeks_to_seal_info_ in_NSA_leak_case.html.
. Josh Gerstein, Justice Department Plans to Use Secret Code in Leak Trial, Politico (Mar. 10, 2011, 4:33 AM). http://www.politico.com/news/stories/0311/50985.html.
. See Gerstein, supra note 66.
. Reuters, Ex-Official for N.S.A. Accepts Deal in Leak Case, N.Y. Times, June 10, 2011, http://www.nytimes.com/2011/06/11/us/11justice.html?_r=0.
. Williams, supra note 30.
. Joshua E. Kastenberg, Analyzing the Constitutional Tensions and Applicability of Military Rule of Evidence 505 in Courts-Martial Over United States Service Members: Secrecy in the Shadow of Lonetree, 55 A.F. L. Rev. 233, 233-34 (2004) (discussing the historical context of Military Rule of Evidence 505).
. U.S. Const. amend. V (emphasis added).
. See U.S. Const. amend. XIV (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added)).
. Malinski v. New York, 324 U.S. 401, 415 (1945).
. Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
. U.S. Const. amend. VI.
. Matthews, 424 U.S. at 335.
. U.S. Const. art. I, § 8, cl. 9.
. See Article I Courts, US Legal.com, http://definitions.uslegal.com/a/article-i-courts/ (last visited Mar. 13, 2013) (“Article I courts are those courts created by the Congress pursuant to its power under Article I of the Constitution. They include the following: 1.)Territorial courts: These are federal courts located in the district of Guam, the U.S. Virgin Islands and the Northern Mariana Islands; 2.) U.S. Court of Military Appeals; 3.) U.S. Court of Veterans Appeals; 4.) U.S. Court of Federal Claims; 5.) U.S. Tax Court. Article I courts are also referred to as legislative courts.”)
. See N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 62-63 (1982).
. Id. at 62-65.
. Id. at 70, 103.