United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
The government has apprised the court and defendants of the applicability of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III §§ 1-16, to certain classified materials at issue in the case, in response to recent court order, and requested a CIPA § 2 conference (DE 41). For reasons given, this motion will be allowed.
A. The Charges
Defendants are charged in indictment returned April 1, 2014, with conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A and conspiracy to murder, kidnap, maim and injure persons in a foreign country in violation of 18 U.S.C. § 956(a). The government asserts that defendants conspired to travel overseas to fight the "kuffar" (non-Muslims) in Syria and Yemen.
B. Case Progress
The government reports that it made its initial discovery production April 10, 2014, including approximately 70 pages of declassified material. A protective order has been put in place already for sensitive discovery. The government describes an ongoing declassification process involving "a substantial quantity of additional material that is currently classified, [that] it expects...to be declassified and produced by April 21, 2014." Gvt.'s Mot. for CIPA Conference at 7. Moreover, beyond this material, the government refers to additional classified material that is being reviewed, which may be subject to disclosure. It notes that this would raise issues of national security for the court's address under CIPA.
Accordingly, the government requests pretrial conference pursuant to CIPA § 2,  to be scheduled in around 45 days. The motion recognizes the current case schedule for the case does not reflect its reality. At anticipated conference, the government proffers it will provide an estimate of the time necessary for it to conduct a complete review of any potentially relevant classified information, and based upon that, a proposed schedule for production of discovery and for proceedings under CIPA §§ 3 and 4 will be offered. Moreover, "[b]ecause of the classified nature of certain information, the government will be unable to provide the Court with specifics in open court (e.g., the type of information at issue, the amount of information at issue, the period of time when such information was collected, whether agencies other than the FBI were involved, etc.)." Gvt.'s Mot. for CIPA Conference at 8. Following the CIPA § 2 conference, however, the government offers that it will be prepared to enter into ex parte conference to discuss these classified matters.
A. CIPA Processes Generally
CIPA provides a procedural framework for "protecting classified information without running afoul of a defendant's right to a fair trial." United States v. Moussaoui , 591 F.3d 263, 281 (4th Cir. 2010). Classified information, as the term is used in the act, "means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security." CIPA § 1(a). CIPA is a flexible act, and it vests the court with "wide latitude to deal with thorny problems of national security in the context of criminal proceedings." United States v. Abu Ali , 528 F.3d 210, 247 (4th Cir. 2008).
Section 4 of CIPA governs the discovery of classified information by a defendant. It provides that:
[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone.
CIPA § 4. This provision creates no new rights of or limits on discovery. Rather, it "clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause, " which includes "the protection of information vital to the national security." United States v. Aref , 533 F.3d 72, 78 (2d Cir. 2008); see also In re Terrorist Bombings of U.S. Embassies in E. Afr. , 552 F.3d 93, 121 (2d Cir.2008) (CIPA § 4's "provisions on discovery... complement those of Rule 16(d)" by "giv[ing] trial judges adequate ...