United States v. Schmidt ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Harry M. SCHMIDT, Major
U.S. Air Force, Appellant
No. 04-8016
Crim. App. No. 2004-01
United States Court of Appeals for the Armed Forces
Decided June 7, 2004
Counsel
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.
United States v. Schmidt, No. 04-8016/AF
PER CURIAM:
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. Id. at 845. The
Government further informed Appellant that civilian counsel
would be provided “access” to classified information only
pursuant to a specific procedure:
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 for a
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United States v. Schmidt, No. 04-8016/AF
security clearance. The military judge denied the motion, and
the Court of Criminal Appeals affirmed that ruling. Id. at 845,
858.
Appellant sought review in this Court of the decision by
the Court of Criminal Appeals. While the appeal was pending,
civilian defense counsel obtained an 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 (Aug. 2, 1995). As a result, that part of the present
appeal relating to the request for a security clearance is moot.
The remaining aspect of the appeal concerns the determination by
the court below that Appellant may not discuss information with
civilian defense counsel who possesses a security clearance
without first obtaining approval to do so by submitting a
request through the prosecution. 59 M.J. at 857.
The lower court relied on Military Rule of Evidence
505(h)(1) [hereinafter M.R.E.] as the basis for requiring
Appellant to submit a request through trial counsel for approval
to discuss classified information with his defense counsel.
Id. at 854-55, 857. M.R.E. 505 is a rule of evidence which
enables the Government to assert a privilege against disclosure
of classified information. The rule also authorizes limited
disclosure under subsection (g)(2) and restrictions on
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United States v. Schmidt, No. 04-8016/AF
disclosure through the use of protective orders under subsection
(g)(1). The rule applies both when the defense seeks to obtain
information from the Government and when the defense intends to
disclose classified information in connection with a court-
martial.
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.
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The Government may establish appropriate procedures to
protect its interests in restricting access to classified
information pursuant to statutes, rules, and regulations.
See, e.g., Dep’t of Defense, Regulation 5200.1-R, Information
Security Program (January 1997). The Government must also
respect the important role of the attorney-client relationship
in maintaining the fairness and integrity of the military
justice system. Now that civilian defense counsel has been
granted an appropriate 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 Amendment and Article 27, UCMJ, 10
U.S.C. § 827 (2000), to the effective assistance of counsel in
preparing a defense. See United States v. King, 53 M.J. 425(C.A.A.F. 2000)(mem.).
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is vacated, and the ruling of the military
judge is reversed. The stay on the trial proceedings imposed by
this Court is lifted, and the case is remanded to the military
judge for further consideration consistent with this opinion.
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