738 F. Supp. 1404 (S.D. Fla. 1990)
Facts: Lopez-Lima seized an aircraft at gunpoint in FL and flew it to Cuba. He was indicted with aircraft piracy. His defense to the charge was that the hijacking was authorized by the CIA as part of its activities to destabilize the communist regime of Fidel Castro. Lopez/Lima wanted to use the classified info:
- As an affirmative defense to show his reliance on the real authority of the CIA to sanction the high jacking
- To rebut the gov’s proof on the intent element of the air piracy offense.
- Gov challenged the use of the classified info on grounds of relevancy and admissibility.
Issue: Whether Lopez-Lima has a legally cognizable defense based on classified information, so as to make the information relevant at trial.
Holding: To establish a public authority affirmative defense, the defense must show that the governmental entity involved had the real authority to sanction conduct that would violate the laws under which the defendant is charged; and that the defendant acted in reasonable reliance on an actual US government agent. In short, you have to demonstrate the CIA had real authorization and you relied on that real authorization.
- In 1964, the CIA did have the authority to hijack the airplane:
- Executive Order 12,333: (1981 – lists US intelligence activities, but says that the activities can’t violate the Constitution or statutes) was not enacted at the time (1964) Lopez committed the offense, so the CIA was not explicitly precluded from authorizing Lopez to hijack the plane to Cuba, even if that act were illegal according to US statutes.
- Court looked to Church Committee reports to decide if EO 12,333 changed existing practice or merely codified established policy; reports demonstrated that EO 12,333 was a corrective measure designed to stop intelligence agencies from engaging in covert activities that violate US law.
- Until 1981, the CIA had the authority to do anything and didn’t have to comply with the law.
- 5th Function: In the absence of EO 12,333, Court found 5th Function to be the authority for the CIA to authorize illegal activity in 1964. 5th Function = broad, nonspecific grant of power from which the NSC, with presidential approval, authorized a number of NSC Directives which include a broad list of covert activities. The CIA was acting in a vacuum of authority to authorize illegal covert activities, so would have had the real authority to authorize a hijacking at this time.