                                  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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United States v. Schmidt, No. 04-8016/AF


     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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