Understanding the Classified Information Procedures Act (CIPA)

Barry M. Wax

In recent months, there has been a lot of focus on the way the U.S. government handles classified documents and those who risk the exposure of such information. The investigation surrounding former President Donald Trump’s possession of 11 sets of classified documents could prove to be one of the biggest moments in our nation’s history. A former president potentially exposing key government secrets to his peers and our enemies would have devastating, far-reaching consequences.

We are not here to litigate whether or not the former president is guilty or innocent, but rather, to provide a general understanding of the Classified Information Procedures Act (CIPA). Here’s what you need to know as that investigation continues.

The Origin of CIPA

The Classified Information Procedures Act was officially enacted in October 1980. The main purpose of the statute is to ensure the integrity of the classified information while allowing both the prosecution and defense to rightfully pursue their case. The attorney(s) for both sides may need to access certain classified information in the discovery process in order to build their cases (in some cases this requires a security clearance). This makes the classified information available to additional parties, risking another level of exposure, so CIPA provides the government with limited rights to remove or limit the release of certain information.

In order to qualify, the release of the classified information must “be expected to result in damage to the national security.” While it is not publicly known what information the documents the former president held include, much analysis on the case and sourced reporting indicate at least some of what is contained in the confiscated documents would create a risk to national security if documents were to be released.

The act also works to prevent defendants in legal cases involving classified documents from using “graymail” to threaten the release of the classified information they are alleged to be in possession of.

Past Cases Involving Classified Documents

In previous high-profile cases involving classified documents, former Army soldier Chelsea Manning received 35 years for passing thousands of classified documents to WikiLeaks while former intelligence contractor Reality Winner served four years for leaking a single classified document. These cases highlight just how severe the punishment can be for those who violate CIPA and similar laws (such as the Espionage Act).

In the Reality Winner case, the Justice Department attempted to limit Winner’s access to evidence relevant to her defense pursuant to CIPA. In Chelsea Manning’s case, the documents had already been publicly released and CIPA would not have worked to prevent the release of the information held within those documents.

The Significance of CIPA in a Criminal Trial

CIPA can be highly relevant in the prosecution and defense of a criminal case. It can be used to prevent the release of vital information which is significant to the preparation and presentation of a defense. CIPA is one of many statutes and laws on the books that work to protect our national security. As with other laws, however, there are interpretations of its provisions that can affect an individual’s right to a fair trial. As you follow future cases involving classified information, this general understanding of CIPA and similar laws should provide some clarity on its implications.

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