(CN) – The government insists that the law and national security support the security measures it wants to take during pretrial discovery with former CIA Agent Jeffrey Sterling, who demands access to witnesses’ identities and unredacted documents.
Sterling has been accused of leaking classified government intelligence to a New York Times reporter and is presently facing trial in the Eastern District of Virginia.
Earlier this month, the court agreed, over Sterling’s objections, to hold in camera hearings.
On Friday, the government defended its privilege claims with a lengthy brief primarily concerning the Classified Information Procedures Act (CIPA).
Rebutting Sterling’s claim that the act “only expressly authorizes the use of substitutions and redactions for evidence that the defendant wants to introduce” (italics in original), the government emphasized that it, too, enjoyed the act’s protections.
Prosecutors say Sterling waived any objections by allowing the government to proceed under the act in a May 2011 hearing. “Having given the defendant notice of its proposed exhibits two months in advance of trial, the government has been sandbagged, and the court should not tolerate such a tactic,” the brief states.
Furthermore, “even if the court does not agree that the defendant has waived this objection, the statutory language of CIPA expressly permits the government to use substitutions and redactions,” the government said.
The relevant section of the act “does not distinguish between classified information noticed by a defendant and classified information that will be used as evidence of guilt in the government’s case,” the brief argues.
A Senate report on the act, quoted in the brief, says it exists to provide “pretrial procedures that will permit the judge to rule on questions of admissibility involving classified information,” without reference to different rules for different parties.
The government also said its proposed “security measures should be adopted by the court because an overriding interest in protecting national security and personal safety exists.”
“Congress sought to minimize the unnecessary disclosure of classified information,” according to the prosecution.
In contrast, Sterling would force the government to declassify classified information simply to use it and possibly “defeat a prosecution based in part upon classified information that the government intends to use in its case-in-chief,” the government said.
Even if the act does not apply, “the federal rules of evidence allow the court to redact or summarize privileged classified information,” the government added. Past cases have recognized a national security privilege, and there is no reason to assume that the act changed this, the United States said.
The brief also claims that the balance of interests proves its proposed measures are neither unfair nor unreasonable.
Many government witnesses’ “true identities are classified and protected from disclosure for national security reasons,” the brief states, adding that “the Supreme Court has noted that it is obvious and unarguable that no governmental interest is more compelling than the security of the nation.”
The government then provided what Sterling has called an untenable “parade of horribles” with regard to disclosure.
Disclosing witnesses “could jeopardize the security of intelligence operations and diminish the effectiveness of current or future operations,” the brief states. “Disclosure can expose activities, reveal sources, divulge methods, and allow foreign adversaries to determine the precise location where CIA employees may work. Disclosure can negatively impact foreign liaison relationships. Finally, disclosure of the true identities of former and present CIA employees as well as any CIA human assets exposes them to harassment and counter-intelligence targeting.”
“No reasonable alternative [sic] exist,” the United States continued. “To disclose the true identities would create real and legitimate national security and personal safety risks.”
Redaction, summarization, pseudonyms, physical screens and the prohibition of sketch artists are among the various security measures requested.