Secrecy & Leaks

Read Out: Hearing on DOJ's State Secrets Claim in Restis v. UANI

By Lauren Bateman
Sunday, October 12, 2014, 4:00 PM

The transcript of Judge Edgardo Ramos' Wednesday hearing in Restis v. United Against Nuclear Iran ("UANI") is in---and full of fascinating questions about the government's use of the state secrets privilege.  

As we reported earlier, the case is notable because the government took the unusual (though not completely unprecedented) step of intervening in a private lawsuit to assert the privilege.  The move provoked a flurry of speculation in the press: as New York Times reporter Matt Apuzzo wrote, "If United Against Nuclear Iran possesses American classified information, it is not clear how the group obtained it. Government intelligence agencies are prohibited from secretly trying to influence public opinion." In a September 12th motion, the government first asserted the privilege and asked for dismissal of Restis' lawsuit. In response, the plaintiff sought leave to file a motion to have the government to furnish further factual background its filing.

A blow-by-blow read out of the hearing---digested from the transcript---follows below.  In short, on Wednesday Judge Ramos considered argument from lawyers for both Mr. Restis' and the United States as to whether the government's assertion of the privilege in these circumstances is a novel one.  Additionally, the court requested more briefing on possible alternatives to dismissal, and on the First Amendment implications of the injunctive relief sought against UANI.
Judge Ramos first asks the defense attorneys if they have any objection to the government's motion to intervene.  None are forthcoming; the government is thus formally allowed into the case for purposes of its motion.
Mr. Restis' attorney, Abbe Lowell, produces a list of 23 cases in which the government asserted the state secrets privilege, either because the United States was itself a defendant or closely aligned with one.  "I don't know if you'd be surprised," he says, "but I have to tell you that I was surprised to know that in each 23 of them there was a public affidavit that was made part of the proceedings.  And this was a public affidavit made part of the proceedings in cases which on their face present, at least to the observer, let alone to the parties that are litigating, quite a significant more serious issue; such as the defense of whether or not the United State engages in torture; such as whether the United States or its contracts made a faulty plane, boat, ship, missile that caused a United States service person to be killed; such as whether the United States goes outside the boundaries of the law in order to wiretap, etc.."
In each of these cases, Lowell goes on to say, "what was clear from the context of the assertion on its face was the connection by the government to the party in dispute."  And in every one of the 23 cases, the privilege was founded on the submission on an affidavit from a government official; or it was clear from context why there might be a proper assertion of the privilege. But this case is different.  Here, the government is asserting the privilege without making any type of public disclosure.  And though nothing in the case law suggests that Judge Ramos cannot just take the government at its word, Lowell nevertheless "think[s] it would be in error for the court to just say well . . . because the law theoretically allows an ex parte proceeding from first to last, then I can do it, without making sure that this is that exceptional rule."
Judge Ramos seems to disagree.  "As I read Reynolds [ed: a key state secrets privilege case], and I think these are the exact words from Reynolds, not only can the government move and move to dismiss the case based only on information that's been provided ex parte and in camera but they can also do it without even showing it to the judge under the appropriate circumstances."  Lowell responds that "the actual application of [Reynolds] and all the others that we've put forward shows a very different procedure that includes the kind of disclosure that we're talking for."  This court pushes back: "the case law does establish the procedures that courts are required to use, the three-step proceeding of identifying whether it's a state secret or not and then as you've indicated figuring out the most narrow way of protecting that privilege."  Why isn't that---when combined with the 2009 Holder memorandum, which narrowed the government's ability to invoke the state secrets privilege---enough?  Lowell responds that constitutional due process supersedes the state secrets privilege, and that the Holder memorandum should, in fact, weigh in Lowell's client's favor.  After all,  the memorandum insists on narrow tailoring, accountability and (overall) maintenance of the public's confidence.  And this privilege claim doesn't seem to meet any of those criteria.  There's a bit more afterwards---among other things, Lowell mentions some statements on state secrets reform made by Second Circuit Judge Robert Sack---and then the lawyer closes:

The government's intervention in this private case allows the defendant to say what they want about him, whatever they want about him, and then run to the garage of the government and put the door down and say 'but we don't have to defend our conduct.'  And they don't have to stop doing it.  And indeed they didn't stop doing it.  At the very time that they're sending you letters, basically cheering on the government and saying rah, rah, do what the government said, in either the same pleading, or on their web site, or out in their press releases they continue to put out charges against Mr. Restis.  And what an amazing thing the government's intervention will give them: A license to defame.

Assistant United States Attorney Michael J. Byars presents the government's case. The United States, he says, has presented both public submissions and ex parte, in camera submissions.  The latter have "put the necessary facts and circumstances underlying [the government's] claim of the state secrets privilege before the court."   In any event, Byars reasons, the fact that the 23 prior states secrets privilege litigations aren't "on all fours" with this case is irrelevant:  this and every state secrets determination must be made on a case-by-case basis.  Judge Ramos: "So you're agreeing with the plaintiffs' findings that this case is unique?"  Byars responds that every case is so but the case law nevertheless gives sufficient guidance for the court to proceed.
What about the fact that Lowell has a sufficient security clearance to be working in two different SCIFs presently?  Does that mean that Judge Ramos could grant Lowell the ability to review classified documents as needed?  Byars: "The answer is it's not done in these types of civil cases.  It's not done under justification of the states secrets case law as a matter of common law."  Judge Ramos asks the government to prepare for discussion of policy considerations undergirding the prevention of "giving the plaintiffs' lawyers the ability under appropriate clearance and under appropriate strictures of reviewing the information."
The court turns to Lee Wolosky, attorney for UANI, who all but shrugs.  He says "defendants have no position on the adequacy or the amount of information that the government should be required to disclose in connection with this privilege application."
Lowell then returns to the stand for a response.  He quotes from the government's brief: "As the state secret privilege declaration explains, the identity of the concerned federal agency, particular information at issue, and the bases for the assertion of the state secrets privilege ... cannot be disclosed without revealing classified and privileged matters.  This determination is entitled to 'the utmost deference' by the court."  This is not sufficient; it offers no way to reassure plaintiffs that the court can do its job on the facts alleged in the ex parte government briefings.
Judge Ramos then asks for briefing related to the First Amendment questions involved in injunctive relief, to which Wolosky replies: "Our clients are not going to permit Mr. Restis to use his economic power, his unlimited resources, his threats of litigation, to squelch their First Amendment rights." A bit more discussion ensues, and then Lowell concludes with a procedural tidbit: it seems that his side will file an amended complaint by the end of the week.