Wilkes, Foggo Prosecutors Wary of “Gray Mail”

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March 2, 2007 12:12 p.m.

From The San Diego Union-Tribune:

Prosecutors in the corruption case against Poway defense contractor Brent Wilkes and former CIA official Kyle “Dusty” Foggo asked a judge yesterday to limit dissemination of intelligence secrets that, if made public at trial, could damage national security…

Prosecutors noted that they were concerned about “the specter of gray mail,” a defendant’s practice of trying to derail his prosecution by threatening to disclose classified information in court.

To keep that from happening, Congress enacted the Classified Information Procedures Act in 1980. Under CIPA, the two sides argue before a judge in secret on whether the information is needed for a full defense. If a judge, in this case U.S. District Judge Larry Burns, decides that the defendant is entitled to the information, the government has to decide whether to risk disclosure and proceed, or drop the prosecution….

In the Foggo case, after a joint request by the prosecution and defense, Burns appointed court security officers as custodians of classified information.

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