The rules are airtight: Attorneys need security clearances to enter the SCIF. The response filings must be drafted in a government office, on a government computer, under the watch of a Justice Department security officer. Telephones, personal laptops and notepads are not allowed into the room. Attorneys cannot take notes. Additionally, the government files things in secret, under seal, to which a defendant has no access but must respond to. Unless the defendant’s team is clairvoyant and has eidetic memory, they are at a profound disadvantage.
Further disadvantages arise in the courtroom. The Classified Information Procedures Act is supposed to allow the government to create “substitutions” for classified information, such as summaries or redactions, as accommodations to be used in court. But the procedures can be manipulated in bizarre ways. In the Drake case, the government tried to invoke the “Silent Witness Rule,” wherein the judge, jury and lawyers must speak in code indecipherable to the public. If that were not Kafkaesque enough, the government even tried to make a “classified by inference” argument that, even though certain information was marked unclassified, Mr. Drake should have known that it should have been classified. Try to follow that logic.
But what comes next will dash any illusions from the “face the music” crowd that you can just “explain it all” to the jury. The Espionage Act has morphed into a strict liability law, which means the government does not have to show the defendant had a felonious intent.
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