NORTH COUNTY -- The handling of national secrets could play a role in the conspiracy case against the CIA's former executive director who is accused in a corruption scandal that allegedly involves a Poway defense contractor.

A prosecutor and a defense attorney for Kyle "Dusty" Foggo, the CIA's former No.3 man, have both said that they intend to use classified information in the case. National security concerns have already triggered a federal law called the Classified Information Procedures Act that is designed to protect state secrets and a defendant's right to a fair trial.

Foggo and Poway businessman Brent Wilkes have each been charged with 11 federal criminal charges, including one count of conspiracy, seven counts of fraud and three counts of unlawful monetary transactions. The indictment accuses Foggo of steering millions of dollars in government contracts to Poway businessman Brent Wilkes in exchange for gifts and favors. Wilkes has also been indicted on multiple counts in the case.

Foggo and Wilkes have pleaded not guilty to all charges.

Both men grew up in San Diego County and have been friends since childhood.

Foggo's case stems from the corruption and bribery scandal that resulted in the resignation and imprisonment of former U.S. Rep. Randy "Duke" Cunningham.

On Tuesday, in accordance with the national security law, federal district court Judge Larry Alan Burns issued a court order appointing what is known as a court security officer, who is charged with working with the judge to determine what material can be released in a court of law and in what form.

Duke University law Professor Scott Silliman said last week that he believes the law will do what it is supposed to do and that state secrets will be protected and Foggo will get a fair trial.

However, another attorney said recently that Foggo has so much top secret information in his head that it will make it difficult for defense counsel to fully question him should he take the stand.

Indictments

According to the indictment, Wilkes offered Foggo a high-paying position and an executive suite at his company's new Poway headquarters once Foggo left the CIA. The indictment alleges that the job offer was a payoff for steering defense business to Wilkes' company, and that the two engaged in other corrupt deals, including trips and gifts for Foggo, who left the CIA in May amid an investigation into his conduct.

Prosecutors allege that Foggo steered $1.7 million to Wilkes' companies in exchange for such gifts.

Wilkes has also been indicted on multiple counts in a related case involving Cunningham. Cunningham, a Republican, won election to his eighth term in Congress in November 2004 and was representing a portion of North County when the scandal forced him to resign in December 2005.

Duke University's Silliman said that dealing with the restrictions imposed by the federal security act is something attorneys "learn to deal with," and that he does not believe that appointing a court security officer or restricting the use of classified information impedes a defendant from receiving a fair trial.

In a recent interview with The Associated Press, however, another attorney said the defense could be harmed in the event that it is not allowed to fully question Foggo, because of the extent of the classified knowledge he has as the spy agency's former No. 3 man.

"The defense can claim it's being denied the opportunity to provide exculpatory information if you stop the guy from testifying because of what he knows," Joshua Dratel, a New York criminal defense attorney who is not involved in the Foggo case, told The Associated Press.

Recent case demonstrates issue

A recent case highlights concerns over the use of classified information in trials. Last week, David Passaro, a former contractor for the CIA, received an eight-year, four-month prison sentence for beating an Afghan prisoner who later died. Passaro was accused of beating the man with a steel flashlight during a two-day, 2003 interrogation.

During court proceedings, prosecutors and defense attorneys spent months battling over what could or could not be admitted into evidence and in what form. Much of the information in the case was classified. Eventually, the judge in the case allowed some classified documents to be introduced, but only after portions had been edited.

In other instances, the judge cleared the courtroom, so that certain evidence could be discussed.

In the Foggo case, it remains to be seen whether the classified information is relevant to his defense, but if it is, "that is where the problem is going to arise," said Mario Conte, former executive director of Federal Defenders of San Diego Inc.

The nonprofit group is supported by government grants and provides free legal counsel to poor defendants in federal court cases.

The government could say, "I know the information is relevant, but it can't be disclosed," Conte said Thursday.

But what if that information is exculpatory information that could go to his defense, he asked.

What the law says

The federal act lays out strict rules for the way classified information can be admitted in court and how it will be handled.

At any time after an indictment is filed, either side can ask for a pretrial conference to consider matters relating to classified information, according to the federal act. The court may then allow certain items of classified information to be deleted from documents presented in court, the act states. The court may also order that only part of a written document, recording or photograph can be admitted into evidence.

Federal law lets prosecutors ask the judge to allow a simple summary of the classified information, rather than presenting the classified information itself.

Another way around presenting state secrets to a jury is to provide jurors with a statement that both sides agree to on whatever fact the classified information is trying to prove.

The court may decide that disclosure of certain classified information would cause "identifiable damage" to national security, according to the act. If the court decides to exclude the information, defense counsel can ask the court to seal the information and save it in case of a post-trial appeal.

Prosecutors need to win permission from the CIA and other agencies before they can access or reveal classified information.

"They've got to negotiate with the agencies from which the information originated," Nancy Hollander, an attorney in New Mexico who was involved in the security case involving nuclear scientist Wen Ho Lee, told The Associated Press.

During last week's court hearing in San Diego, prosecutors told Judge Burns that they plan to rely on classified information relating to transactions and events, but said they expect to be able to screen out sensitive details.

"We can call witnesses without using their actual names," Assistant U.S. Attorney Phil Halpern told a reporter after the hearing.

Silliman reiterated last week that he believes the provisions in the act do not prevent a defendant from getting a fair trial.

"Is it a burden to the accused? -- No, it is not," he said.

Contact staff writer William Finn Bennett at (760) 740-5426, or wbennett@nctimes.com.