Sales on Spotting Graymail

Generally, judges are good at balancing a defendant's needs against national security and are are adept at spotting graymail, says Professor Nathan Sales, commenting in an Associated Press news story on threats by a former top CIA official that he will expose the identities of agents and programs as part of his defense in his corruption and fraud trial.

"Litigants will always try to embarass the other side" or present impediments to them, said Sales. "It's a pretty shrewd litigation tactic, and it's a pretty common one."

The CIA official, Kyle "Dusty" Foggo, is charged with 28 counts of wire and mail fraud, unlawful transfers of funds, and making false statements. Prosecutors claim Foggo is threatening to divulge names of operatives and sensitive program information in the course of his testimony.

Ex-CIA exec facing trial says he'll expose agents, The Associated Press, September 9, 2008. By Matthew Barakat.

"Prosecutors say Foggo has threatened 'to expose the cover of virtually every CIA employee with whom he interacted and to divulge to the world some of our country's most sensitive programs--even though this information has absolutely nothing to do with the charges he faces.'

"Prosecutors also allege his lawyers are seeking to introduce classified evidence to 'portray Foggo as a hero engaged in actions necessary to protect the public from terrorist acts' to gain sympathy from jurors.

"Foggo's efforts to disclose classified information are 'a thinly disguised attempt to twist this straightforward case into a referendum on the global war on terror,' wrote prosecutors Valerie Chu, Jason Forge and Phillip L.B. Halpern in a court motion filed Friday in U.S. District Court in Alexandria.

"The government wants U.S. District Judge James Cacheris to hold a closed hearing on whether the information is admissible at trial and if it is relevant to Foggo's case.

"Mark MacDougall, Foggo's lawyer, declined comment Tuesday on the government's filing. Defense filings regarding the classified issues are under seal.

"In public filings, the defense has complained that prosecutors manipulated the grand jury process to gain an unfair advantage. Those arguments were rejected by a judge.

"It is not unusual for defendants in national security cases to claim that they must disclose classified information in their defense, experts said.The practice has a name, 'graymail,' and Congress has passed laws instructing courts to protect classified information by crafting unclassified susbstiutions that can be released at trial."

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