C riminal prosecutions involving classified information inherently create a tension between the government's legitimate interest in protecting sensitive national security information and a criminal defendant's rights under the United States Constitution and federal law. In many cases, the executive branch may resolve this tension before any charges are formally brought by simply forgoing prosecution in order to safeguard overriding national security concerns. "Graymail" colloquially refers to situations where a defendant may seek to introduce tangentially related classified information solely to force the prosecution to dismiss the charges against him. However, in other cases, classified information may actually be material to the defense and excluding it would violate the defendant's constitutional rights. This tension was the primary factor leading to the 1980 enactment of the Classified Information Procedures Act (CIPA), which "provides pretrial procedures that will permit the trial judge to rule on questions of admissibility involving classified information before the introduction of the evidence in open court." These procedures are intended to provide a means for the court to distinguish instances of graymail from cases in which classified information is actually material to the defense. Courts have generally agreed that CIPA does not create any new privilege against the disclosure of classified information, but merely establishes uniform procedures to determine the materiality of classified information to the defense in a criminal proceeding. The U.S. Court of Appeals for the Second Circuit (Second Circuit) has held that CIPA "presupposes a governmental privilege against disclosing classified information" in criminal matters. Therefore, before discussing the specifics of the Classified Information Procedures Act in criminal prosecutions, this report will first provide a general overview of the government's ability to restrict disclosures in civil litigation by asserting the state secrets privilege. The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during civil litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds. If the state secrets privilege is appropriately invoked to cover protected information in civil litigation, it is absolute; the disclosure of the underlying information cannot be compelled by the court. Still, a valid invocation of the privilege does not necessarily require dismissal of the lawsuit. In Reynolds , for instance, the Supreme Court did not dismiss the plaintiffs' claims, but rather remanded the case to determine whether the claims could proceed absent the privileged evidence. Controversy has arisen with respect to the question of how a case may proceed in light of a successful claim of privilege. Courts have varied greatly in their willingness to either grant government motions to dismiss a claim in its entirety or allow a case to proceed "with no consequences save those resulting from the loss of evidence." Whether the assertion of the state secrets privilege is fatal to a particular suit, or merely excludes privileged evidence from further litigation, is a question that is highly dependent upon the specific facts of the case. Prosecutions implicating classified information can vary factually, but an important distinction that may be made among such prosecutions regards whether the defendant already has access to the classified information in question. In cases where the defendant is accused of leaking classified information, she may already be privy to such information, and the government may be seeking to prevent further disclosure to the general public. However, in the case of terrorism prosecutions, the more typical concern is likely to be how classified information can be used as part of the prosecution's case against the defendant. In these cases, protective orders preventing disclosure to the defendant, as well as to the public, may be sought by the government. Constitutional issues related to withholding classified information from a criminal defendant arise during two distinct phases of criminal litigation. First, issues may arise during the discovery phase, when the defendant requests and is entitled to classified information in the possession of the prosecution. Secondly, issues may arise during the trial phase, when classified information is sought to be presented to the trier-of-fact as evidence of the defendant's guilt. The issues implicated during both of these phases are discussed below. CIPA contains a number of provisions that are intended to create opportunities to resolve issues related to the use of classified information in advance of trial in a secure setting. For example, at any time after charges have been filed against a defendant, any party may request a pretrial conference to discuss issues related to the potential disclosure of classified information. Among the issues that may be discussed are schedules for discovery requests and hearings to determine the relevance, admissibility, and materiality of classified information. CIPA also requires a defendant to notify the court and the prosecution of any classified information that he reasonably expects to disclose or cause the disclosure of. If a defendant fails to provide such notice, he may be penalized by being precluded from using such evidence at trial. In order to ensure that the disclosure of classified information is not premature, the government may also take an interlocutory appeal of any CIPA ruling, rather than waiting until a trial has concluded. In this way, the government does not have to risk disclosure of classified information that would later have been determined by a reviewing court to be protected. Such appeals will be expedited by the court of appeals. In order to safeguard classified information that is disclosed, CIPA authorizes courts to issue protective orders prohibiting or restricting the disclosure of such classified information. In some cases, protective orders may limit disclosure to individuals or attorneys, even from those who have received security clearances from the government. However, some defendants may be ineligible for the necessary security clearances. In these cases, courts may issue protective orders prohibiting cleared counsel from sharing any classified information with the defendant. In the event that the defendant's attorneys are also unable to obtain the necessary security clearances, courts have appointed counsel with the necessary security clearance to represent the defendant in matters where disclosure of classified information may be necessary. However, in some cases, cleared counsel have been prohibited from disclosing the classified information to the uncleared defendant or uncleared defense counsel. For example, in In re Terrorist Bombings of United States Embassies in East Africa , the court entered a protective order limiting disclosure of classified material to certain persons who had obtained sufficient security clearances. The defendant's attorneys were able to obtain security clearances, but the defendant was not. Because of this, the defendant's attorneys were unable to share with their client all the information they learned from the classified documents. Other facts deemed by the court to be relevant to the defendant's case were declassified or stipulated by the government. The defendant in this case argued that this restriction on communication violated his Sixth Amendment right to have the assistance of counsel. The Second Circuit rejected this claim, noting that the right to the assistance of counsel does not preclude every restriction on communication between defense counsel and the defendant. In this instance, the court believed that the restrictions were justified because the disclosure of the classified information "might constitute a particularly disastrous security breach—one that, perhaps, might place lives in danger." Furthermore, the Second Circuit found that the restrictions were limited and carefully tailored because they permitted cleared defense counsel to discuss the "relevant facts" with the defendant. The mechanics of discovery in federal criminal litigation are governed primarily by the Federal Rules of Criminal Procedure. These rules provide the means by which defendants may request information and evidence in the possession of the prosecution, in many cases prior to trial, including classified information. CIPA authorizes a court to permit the government to propose redactions to classified information provided to the defendant as part of discovery, but "does not give rise to an independent right to discovery" of classified information. Alternatively, a court may permit the government to summarize the classified information, or to admit relevant facts in lieu of providing discovery. In support of such procedures, the government may submit an affidavit written statement explaining why the defendant is not entitled to the redacted information. The statement may be viewed by the court ex parte and in camera . Under federal law, there are certain classes of information that the prosecution must provide if requested by the defendant. For example, Brady material, named after the seminal Supreme Court case Brady v. Maryland , refers to information in the prosecution's possession which is exculpatory or tends to prove the innocence of the defendant. This may encompass statements by witnesses that contradict, or are inconsistent with, the prosecution's theory of the case. Such information must be provided to the defense, even if the prosecution does not intend to call those witnesses. Prosecutors are considered to have possession of information that is in the control of agencies that are "closely aligned with the prosecution," but whether information held exclusively by elements of the intelligence community could fall within this category does not appear to have been addressed by the courts. Additionally, Jencks material refers to written statements made by a prosecution witness, who has testified or may testify. For example, this would include a report made by a witness called to testify against the defendant. In the Supreme Court's opinion in Jencks v. United States , the Court noted the high impeachment value a witness's prior statements may have, to show either inconsistency or incompleteness of the in-court testimony. Subsequently, this requirement was codified by the Jencks Act. Classified information that is also Jencks or Brady material is still subject to CIPA and may be provided in a redacted or substituted form, but the operation of Jencks and Brady may differ in this context. For example, under Section 4 of CIPA, which deals with disclosure of discoverable classified information, the prosecution may request to submit either a redacted version or a substitute of the classified information in order to prevent harm to national security. While the court may reject the redacted version or substitute as an insufficient proxy for the original, this decision is made ex parte without the defendant's input. In some cases, the issue may not be the disclosure of a document or statement, but whether to grant the defendant pre-trial access to government witnesses.