WASHINGTON, May 17 (UPI) -- The U.S. Department of Justice is proposing a change to the law governing how classified material is dealt with in criminal cases.
"I know that the department has proposed legislation" to amend the Classified Information Procedures Act, Kenneth Wainstein, the president's nominee to head the new National Security Division at the Justice Department told a Senate panel Tuesday.
At a hearing of the Senate Select Committee on Intelligence, Wainstein said changes the government proposed would make it possible for the prosecution to request that classified information be withheld from the proceedings without notifying the defense of the fact.
"That only makes sense to me," he said, adding that many of the counter-terrorism and counter-espionage prosecutions he would oversee in his new post involve classified material.
Current law says that the prosecution can apply privately to the judge for classified material to be either excluded altogether, submitted in redacted form, or substituted by a non-classified version. But they must notify the defendant of their intention to do, and present them with a broad description of the information they are arguing to get withheld.
Wainstein called that "put(ing) the cart before the horse," because it meant "you ... actually have to disclose the fact that there's classified information to defense counsel, possibly in open courtroom."
Even that disclosure might be a security breach, he said. "You might well have disclosed some important information just by disclosing the fact of classified information."
Wainstein added that there might be other changes needed to the act, but he would need to review the law in more detail. "Beyond that, I'd have to go in and really noodle through the statute and see what other refinements might be advisable," he said.
