United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)
In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.
The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion – advocated by some in Congress – that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.
First, a district court must decide whether the evidence …