IN THE CASE OF
UNITED STATES, Appellee
Harry M. SCHMIDT, Major
Crim. App. No. 2004-01
For Appellee: Colonel LeEllen Coacher and Major James K. Floyd (on brief).
For Appellant: Charles W. Gittins, Lieutenant Clayton W. Moushon, Major Andrea M. Gormel, and Major James E. Key (on brief).
Military Judge: Mary M. Boone
this opinion is subject to editorial correction before final publication.
This appeal is from the denial by the United States Air Force Court of Criminal Appeals of Appellant’s petition for extraordinary relief in the nature of a writ of mandamus. See Schmidt v. Boone, 59 M.J. 841 (A.F. Ct. Crim. App. 2004). Appellant, who currently holds a security clearance, wishes to discuss with his civilian defense counsel certain classified information for purposes of preparing his defense at a pending court-martial. The information at issue in this appeal was made available to Appellant by the Government in the course of Appellant’s performance of his military duties. This appeal does not involve a request for pretrial discovery.
The Government denied civilian defense
counsel’s request to be processed for a security clearance.
Identify in an e-mail message to me . . . the exact materials to which you think the civilian counsel needs access (citing paragraph or chapter, AFI or other publication number and, MOST IMPORTANTLY, identifying the original classification authority - the “owner/originator of the classified material”). . . . Your request must also contain a full justification of why the civilian counsel needs to be granted access to the additional classified materials.
At trial, Appellant filed a motion for
appropriate relief from the refusal to process civilian defense counsel
security clearance. The military judge
the motion, and the Court of Criminal Appeals affirmed that ruling.
Appellant sought review in this Court of
the decision by the Court of Criminal Appeals.
While the appeal was pending, civilian defense counsel obtained
interim security clearance in his capacity as a Marine Corps reserve
officer. The Air Force has agreed to
honor that clearance for purposes of the present court-martial. See Exec. Order No. 12968, 60 Fed.
Reg. 40245 (
The lower court relied on Military Rule
of Evidence 505(h)(1) [hereinafter M.R.E.]
basis for requiring Appellant to submit a request through trial counsel
approval to discuss classified information with his defense counsel.
The lower court erred in failing to recognize that M.R.E. 505(h)(1) applies only when the defense seeks classified information from the Government or when the defense has determined that it reasonably expects to disclose classified information in the course of a proceeding. The rule does not come into play when the defense is making a preliminary evaluation of the evidence it already possesses to determine what evidence, if any, it may seek to disclose as part of the defense. The rule requires notice to trial counsel and contemplates litigation before the military judge -- an exercise that requires sophisticated legal judgments, evaluation of defense tactics, appropriate procedural devices, and skilled legal advocacy. The rule does not require an accused, without benefit of his own counsel, to engage in adversarial litigation with opposing counsel as a precondition to discussing with defense counsel potentially relevant information which the accused already has personal knowledge of based on his prior authorized access as part of his military duties.
The Government may establish appropriate
procedures to protect its interests in restricting access to classified
pursuant to statutes, rules, and regulations.
See, e.g., Dep’t of Defense,
5200.1-R, Information Security Program (January 1997). The Government must also respect the
important role of the attorney-client relationship in maintaining the
and integrity of the military justice system.
Now that civilian defense counsel has been granted an
security clearance, we are confident that the military judge can take
appropriate action to protect the Government’s interest in restricting
disclosure of classified information in a manner that respects the
right of an
accused servicemember under the Sixth
Article 27, UCMJ, 10 U.S.C. § 827 (2000), to the effective assistance
counsel in preparing a defense. See
The decision of the United States Air
Force Court of Criminal Appeals is vacated, and the ruling of the
judge is reversed. The stay on the trial
proceedings imposed by this Court is lifted, and the case is remanded
military judge for further consideration consistent with this opinion.