Section 2 provides that "[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution." Following such a motion, the district court "shall promptly hold a pretrial conference to establish the timing of requests for discovery, the provision of notice required by Section 5 of this Act, and the initiation of the procedure established by Section 6 (to determine the use, relevance, or admissibility of classified information) of this Act."

Of critical importance in any criminal case, once there exists any likelihood that classified information may be at issue, is the entering of a protective order by the district court. CIPA Section 3 requires the court, upon the request of the government, to issue an order "to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case." The government's motion for a protective order is an excellent opportunity to begin educating the Court, including the judge's staff, about CIPA and related issues. It is essential that the motion include a memorandum of law that provides the court with an overview on national security matters and sets forth the authority by which the government may protect matters of national security, including the general authority of the Intelligence Community (IC) pursuant to the National Security Act of 1947, the Central Intelligence Act of 1949, and various Executive orders issued by the President. For sample motions and protective orders or to discuss any problems you may have with the court on CIPA issues, please contact the ISS. The protective order must be sufficiently comprehensive to ensure that access to classified information is restricted to cleared persons and to provide for adequate procedures and facilities for proper handling and protection of classified information during the pre-trial litigation and trial of the case.

The requirement of security clearances does not extend to the judge or to the defendant (who would likely be ineligible, anyway). Some defense counsel may wish to resist this requirement by seeking an exemption by order of the court. The prosecutor should advise defense counsel that, because of the stringent restrictions imposed by federal regulations, statutes, and Executive Orders upon the disclosure of classified information, such tack may prevent, and will certainly delay, access to classified information. In any case in which this issue arises, the prosecutor should notify the Internal Security Section immediately.

An essential provision of a protective order is the appointment by the court of a Court Security Officer (CSO). The CSO is an employee of the Department's Justice Management Division; however, the court's appointment of a CSO makes that person an officer of the court. In that capacity, the CSO is responsible for assisting both parties and the court staff in obtaining security clearances (not required for the judge); in the proper handling and storage of classified information, and in operating the special communication equipment that must be used in dealing with classified information.