The Judge Advocate’s Handbook For Litigating National Security Cases Prosecuting, Defending and Adjudicating National Security Cases National Security and Intelligence Law Division (Code 17) Office of the Judge Advocate General Department of the Navy Washington Navy Yard 1322 Patterson Avenue Washington, D.C. 20374-5066 THE JUDGE ADVOCATE'S HANDBOOK FOR LITIGATING NATIONAL SECURITY CASES Table of Contents Preface Acknowledgements Introduction Chapter 1: Classified Information Appendix 1-A (Classified Information References) Chapter 2: Compartmented Information Chapter 3: Classification Review Chapter 4: Security Requirements Appendix 4-A (Sample Protective Order) Chapter 5: Reporting Requirements Appendix 5-A (Reporting Check List) Chapter 6: Coordination with Outside Agencies Chapter 7: Designation as a “National Security Case” Chapter 8: Charges in a National Security Case Appendix 8-A (Sample Specifications Under Article 134, UCMJ) Chapter 9: Classified Information Protections Appendix 9-A1 (Classification Review- Sample OCA Cover letter) Appendix 9-A2 (Classification Review- Sample Declaration) Appendix 9-B (Sample M.R.E. 505 Secretarial Assertion) Chapter 10: Pretrial Agreements Appendix 10-A (Sample Pretrial Agreement) Chapter 11: Sentencing Case Chapter 12: Special Procedures for Post-Trial documents i TAB A: SJA/TC Checklist TAB B: Military Judge Overview TAB C: Recommended Reading ii Preface National security cases involving classified evidence and testimony present challenges that are outside the realm of normal military justice practice. These cases, particularly those that involve the divulging national secrets, are among the most serious and evoke intense emotions. The evidentiary process by which classified information is presented during hearings closed to the public is complex. The use of classified material at trial imposes significant logistical burdens on Government and defense counsel alike. The procedures and statutes that govern the use of classified evidence are only infrequently encountered in court-martial practice. Therefore, early planning, study, team building, and interagency consultation are the sine qua non to the satisfactory resolution of these uniquely complex cases. The National Security Litigation and Intelligence Law Division (Code 17) of the Office of the Judge Advocate General provides litigation support to Navy-Marine Corps personnel in national security case litigation. Code 17 coordinates classification reviews in litigation involving classified information and thereafter obtains Secretary of the Navy privilege assertions under Military Rule of Evidence 505. Code 17 serves as the Judge Advocate General's and the Navy Legal Service Command's central point of contact for the Department of Justice and components of the Intelligence Community on litigation involving classified information. The Division provides training to staff judge advocates; trial and defense counsel; military judges; Article 32, UCMJ investigating officers; and investigation/court security officers on all matters pertaining to the processing of national security cases. This Guide is written with the expectation that it will be of immediate and continuing value to those charged with protecting national security information and those who investigate, prosecute, and defend servicemembers accused of espionage and related offenses. Code 17 stands ready to assist in all aspects of these cases. The contact information for Code 17 is as follows: Division Director: (202) 685-5464 / DSN 325-5464 Deputy Division Director: (202) 685-5465 / DSN 325-5465 OJAG Security/SCI Liaison: (202) 685-5470 / DSN 325-5470 Code 17 Fax (secure): (202) 685-5467/ DSN 325-5467 iii ACKNOWLEDGEMENTS This Litigation Guide was originally conceived and started under the direction of Captain Peter J. McLaughlin, JAGC, U.S. Navy. Captain McLaughlin was the first Director of the National Security Litigation and Intelligence Law Division (OJAG Code 17) until his retirement in February 2002. His experience as a military judge at both the trial and appellate levels, and his participation as an integral member of the National Security Case Commission provided invaluable insight into litigation issues and procedures involving classified information. His Military Judge Overview, appended to this Guide as TAB A, serves as an outstanding stand- alone summary of the principle points in this Guide. Lieutenant Commander John D. Bauer, who currently serves as Code 17's Deputy Division Director, personally drafted several sections of this Guide, and he reviewed and edited the remainder. Without his outstanding work, this Guide would still be incomplete. Captain Robert J. Eatinger, JAGC, U.S. Naval Reserve, Commander Christopher C. Gentile, JAGC, U.S. Naval Reserve, Lieutenant Commander Patrick E. Kelly, JAGC, U.S. Naval Reserve, and Lieutenant Commander Sherry E. Sabol, JAGC, U.S. Naval Reserve, members of NAVCIVLAWSUPPACT 106 assigned to drill with Code 17, all contributed considerable time and effort in the development of this Guide. Captain Eatinger and Lieutenant Commander Kelly served on active duty in the Special Programs Office of the Office of the Judge Advocate General (the old OJAG Code 11), though a decade apart. The format and much of the content of this Guide is due to their collective knowledge, skill, and experience in handling litigation issues involving classified material. Their contributions made this Guide possible. This Guide benefited from information contained in "Prosecuting National Security Cases: A Handbook For Trial Counsel," a similar work the old Code 11 produced under the direction of Commander Homer S. Pointer, JAGC, U.S. Navy (Ret). An earlier edition of that Handbook was conceived and drafted by Major Frank Short, U.S. Marine Corps (Ret). This Guide borrowed liberally from that earlier work. Drafters of this Guide also benefited from sections of a draft trial guide for cases involving classified information that Captain Melissa L. Barsotti, U.S. Air Force, prepared and generously shared. Finally, my thanks and appreciation also to Lieutenant Commander Karen S. Somers, JAGC, U.S. Navy, who provided invaluable short-fused assistance in formatting and printing an initial draft of this Guide for dissemination to course participants at the Litigating National Security Cases course held in late May 2002 at Norfolk, VA. /s/ P. M. DELANEY Captain, JAGC, U.S. Navy Deputy Assistant Judge Advocate General (National Security Litigation and Intelligence Law) iv Introduction The National Security Case Guide is intended for the use of Naval personnel involved in the prosecution, defense, or adjudication of a National Security Case or case involving classified information. The Guide contains information and guidance on the preparation, prosecution, defense, and adjudication of such cases. Information herein will be of use to Convening Authorities and their staff judge advocates, to trial and defense counsel, to Article 32, UCMJ, Investigating Officers and Military Judges, and to personnel detailed as Investigation Security Officers and/or Court Security Officers. The Guide will be updated often, based upon suggestions and comments from practitioners, court opinions, and changes in rules, regulations, or statutes. The Guide will be an on-line resource. The Guide discusses legal and security issues inherent to National Security Cases. Such issues include classified information, compartmented information, security requirements, the definition of national security cases, coordination with the intelligence community, the difference between criminal and counterintelligence investigations, Rule for Court-Martial 405, and Military Rule of Evidence 505. Appended to the Guide are checklists and sample documents to help illustrate points and issues. Additionally, appended as TAB A to this Guide is an overview and discussion of legal principles tailored for use by military judges. TAB B provides a recommended reading list that includes law review articles and cases. In the end, however, the information in this Guide should be used only as a foundation upon which to build more specific knowledge based upon the facts and needs of each individual case. The Guide is not intended to be a substitute for professional judgment, ingenuity, and zealous representation. Legal discussions and sample documents should not stifle the creativity of counsel. Additionally, the Guide is not intended to usurp military judges' authority to interpret and apply the law. National Security Cases and cases involving classified information are inherently complex because they impose strict security, reporting, coordination, and approval requirements on top of the necessities of investigating, trying, defending, or adjudicating charges. Some offenses are capital and often are "high visibility" cases overseen by the media, senior government officials, and Congress. All parties to a National Security Case must approach their responsibilities deliberately and pay assiduous attention to detail. These cases take time to investigate and prepare for trial. The regulations for the handling, storage, and communication of classified information must be followed with care. v CHAPTER 1 Classified Information A. Introduction. In many national security cases, the investigating officer, counsel, and the military judge will be confronted with documents or other material containing classified information. In such cases, all parties must understand what classified information is, as well as their duties