The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
FIRST SUPPLEMENTAL PROTECTIVE ORDER
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the district court as may be appropriate.
On July 18, 2007, a two-count indictment was filed charging Roy Lynn Oakley with communication of restricted data and theft of public property. [Doc. 3]. Mr. Oakley retained counsel to defend the allegations. Attorneys Herbert S. Moncier and David S. Wigler appeared with Mr. Oakley at his initial appearance and arraignment conducted July 19, 2007, and the Court noted their representation. [Doc. 6]. At the arraignment, Assistant United States Attorney David Dake advised Attorney Moncier and the Court that this case involves classified material within the meaning of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. §§ 1 - 9. AUSA Dake specified that some material to be disclosed to the defense is classified and cannot be disclosed until the CIPA requirements were met, to include security clearance for defense counsel and the entry of a Protective Order. The Court asked that Attorney Moncier consider the issue of defense counsel security clearance and inform the Court of his position regarding security clearance.
On August 13, 2007, the Court conducted a hearing on the United States' Request for Pre-trial Conference Under Section 2 of the Classified Information Procedures Act [Doc. 14]. At that hearing, counsel for Mr. Oakley agreed that the government has properly invoked CIPA and agreed that the Section 2 hearing is appropriate. At that hearing, Attorney Moncier advised that he does not intend to seek a security clearance as proposed by the government. Because CIPA requires this Court to enter a Protective Order setting forth the security procedures to govern this case, the Court asked that the parties consult on the terms of such an order and file with the Court any agreements. In response, the government and the defense submitted to the Court an Agreed Protective Order, which was entered by this Court on August 22, 2007. [Doc. 20]. The Agreed Protective Order included those aspects of security procedure on which the parties could agree. On August 24, 2007, the government filed a Motion for Supplemental Order [Doc. 21]. Mr. Oakley responded in opposition on October 4, 2007, at [Doc. 34].
The Court conducted a hearing on the merits of the respective positions of the government and the defense on October 17, 2007. Assistant United States Attorneys David Dake and Anthony Garcia were present on behalf of the government. Defendant Roy Oakley was present with his attorney, Herbert S. Moncier. The Court received argument of counsel and took the issues raised under advisement. [Doc. 37].
2. ISSUE OF DEFENSE COUNSEL SECURITY CLEARANCE
The Court has previously found, and the parties agree, that this case is subject to the provisions of CIPA. In passing the CIPA legislation in 1980, Congress established a "comprehensive procedural framework for the discovery and admission of classified [information] in a criminal prosecution." United States v. Rewald, 889 F. 2d 836, 847 (9th Cir. 1989). CIPA required the Chief Justice of the United States, in consultation with the Attorney General, the Director of National Intelligence and the Secretary of Defense, to "prescribe rules establishing procedures for the protection against unauthorized disclosure of any classified information in the custody of the United States district courts, courts of appeal, or Supreme Court." 18 U.S.C. App. 9(a). Chief Justice Warren E. Burger complied with this directive and set forth 15 procedures, designated by paragraphs, designed to effectuate the purposes of CIPA. Paragraph 5 of the Security Procedures Established by the Chief Justice for the Protection of Classified Information provides as follows:
5. Persons Acting for the Defendant. The government may obtain information by any lawful means concerning the trustworthiness of persons associated with the defense and may bring such information to the attention of the Court for the Court's consideration in framing a protective order pursuant to Section 3 of the Act.
The Security Procedure which requires "security clearance" by the appointed Court Security Officer is Paragraph 4, which pertains to court personnel and persons acting for the court. Paragraph 4 does not apply to defense counsel or persons acting on behalf of the defendant. Therefore, this Court will not require Attorney Moncier, Attorney Wigler or others working on behalf of Mr. Oakley to seek an Executive Branch security clearance from the Court Security Officer at this time. Compare, United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D.N.Y. 1999) (finding the court had authority to compel defense counsel to undergo Court Security Officer security clearance procedure); and United States v. Musa, 833 F. Supp. 752 (E.D.Mo. 1993) (defense counsel required to obtain formal security clearance), with United States v. Smith, 706 F. Supp. 593, n.1 (M.D.Tn. 1989) (reversed on other grounds) (finding no authority for the court to require defense counsel to submit to a security clearance) and United States v. Jolliff, 548 F. Supp. 232, 233 (D.Md. 1981) (holding that Paragraph 5 does not provide the court with authority to make submission to a security clearance a prerequisite to representation of a defendant in a case involving classified information.)*fn1
The Court is left with the issue of access to classified information of persons acting for the defendant and the directive of Justice Burger's Security Procedure 5. The Court is required to consider any information brought to the attention of the Court by the government in framing the protective order. The government may obtain this information "by any lawful means." The reason for this, like the reason for CIPA itself, is the protection of classified information. However, defense counsel in this case have repeatedly stated that they do not seek access to classified information and intend to proceed with Mr. Oakley's defense without using classified information. Further, defense counsel agree to be subject to the same restrictions that may be placed on members of the jury with respect to any classified information disclosed during trial by the government. The Court appreciates this well-considered proposal by the defense, but finds that it does not adequately protect the government's interest in protecting classified information.*fn2 Moreover, the Court must find that it does not adequately protect Roy Oakley's right to a trial that is fundamentally fair within the meaning of the Fifth Amendment.
For example, this Court has ordered the disclosure of categories of information that may be helpful to Mr. Oakley's defense; the Order on Discovery and Scheduling [Doc. 7 ¶ E] states:
The government shall reveal to the defendant and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence), and United States v. Bagley, 473 U.S. 667 (1985) (impeachment ...