Classified Information Procedures Act (CIPA): An Overview

When a violation of criminal law potentially implicates sensitive national security concern, the Executive Branch may face a dilemma of either declining to prosecute a violation of law or risking disclosure of sensitive material during a criminal trial. Prior to 1980 it was particularly difficult to assess whether a successful prosecution could proceed without jeopardizing disclosure of sensitive information because the government had no means of determining the extent, nature, or relevance of classified information at issue prior to its introduction at trial. In 1980, however, Congress enacted the Classified Information Procedures Act CIPA to provide a means for determining at an early stage whether a disclose or dismiss dilemma exists in a potential prosecution or whether a prosecution may proceed that both protects information the Executive regards as sensitive to security and assures the defendant a fair trial consistent with the mandates of the Constitution. Among its core provisions, CIPA initiates an early focus on security issues by requiring a defendant in a criminal case to notify the prosecution and the court prior to trial of any classified information that he reasonably expects to disclose in his defense. Also, the notice provision is a continuing one, and a defendant must provide a separate notice of any additional classified information that he becomes aware of after his initial notice and intends to use. A defendant may not introduce any classified information that was not included in a CIPA notice.