Proposal for Due Process for Nonprofits Where Classified Information is an Issue

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November 6, 2017

Since passage of the PATRIOT Act and other national security measures taken after the 9/11 attacks, nonprofit organizations may face government enforcement action that is based, in whole or part, on classified information. This creates due process problems in civil enforcement cases, such as terrorist listing or economic sanctions enforcement, where the protections afforded criminal defendants in the Classified Information Procedure Act (CIPA) (18 USCS Appx. § 6(e)) do not apply. Because civil enforcement can effectively close a U.S. nonprofit, this proposal calls or adapting CIPA standards and procedures for government action against NPOs. 

If classified information serves as a basis for government action against the nonprofit, the following provisions apply to redress procedures:

a.       NOTICE – Within 10 days of any government action against a nonprofit the USG should provide the nonprofit with notice that classified information at issue. 

b.      OPTIONS FOR NONPROFIT VIEWING AND USE OF CLASSIFIED INFORMATION: Upon receipt of notice from the USG that classified information is at issue in the adverse action, the nonprofit may opt to follow one of the following procedures:

                                                   i.      ATTORNEY WITH SECURITY CLEARANCE: The nonprofit may request that in lieu of its access to the classified information, the USG allow its attorney, with the appropriate security clearance, to access the classified information.  Such counsel will participate in the review of classified information to determine disclosure issues.  

  • If the nonprofit hires an attorney with security clearance to access to classified information, the attorney may share specified documents with the client upon a particularized showing of the need to share documents with a client. The USG should consider whether specified documents are essential for client review, and, in such cases, consider declassification of the documents or find a substitute means to allow the nonprofit to review the essential information.

                                                 ii.      SUBSTITUTION OF CLASSIFIED INFORMATION: In lieu of an attorney with security clearance viewing classified evidence, the nonprofit may request such information be substituted by:

  • a statement admitting relevant facts that the specific classified information would tend to prove; or
  • a summary of the specific classified information.  The summary must be sufficiently detailed to allow the nonprofit to put forth a meaningful legal response.

c.       ORGANIZATIONS’ OWN DOCUMENTS NOT CONSIDERED CLASSIFIED: Documents created by the nonprofit or obtained from the nonprofit’s records should be accessible to it.

d.      RIGHT TO EXCULPATORY INFORMATION:  Whenever the USG determines that classified information may be disclosed in connection with government action, it should provide the nonprofit with the information in its possession that can be used to rebut the classified information.  The USG should be under a continuing duty to disclose such rebuttal information.

e.      ANONYMOUS WITNESSES – The USG should corroborate any evidence provided by anonymous witnesses before it may base adverse action on such evidence.

f.        RELIEF FOR NONPROFIT WHEN USG OPPOSES DISCLOSURE: If the USG declines to disclose information under the process outlined above, after an investigation or adverse government action is initiated and after notice of that classified information is at issue, the nonprofit may petition the federal district court within 45 days for an order under the Classified Information Procedures Act allowing it access to the information.

  • The United States could, in connection with such a petition, submit to the court an affidavit of the head of the USG agency certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court could examine such affidavit in camera and ex parte.

g.       PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMATION BY NONPROFIT: The nonprofit and its legal representative should not disclose classified information shared with it under the provisions of this section. However, summaries substituting for classified information are not covered by this prohibition.