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.
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.