UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[filed August 17, 2001]DANNY B. STILLMAN * * Plaintiff, * * v. * Civil Action No. 01-01342 (EGS) * DEPARTMENT OF ENERGY et al. * Washington, D.C. 20585 * * Defendants. * *********************************
This case presents a threat to the vitality of First Amendment rights among former and current employees of, or contractors for, the federal government. The circumstances arise from the unlawful efforts of three federal agencies' - the Department of Defense ("DoD"), Defense Intelligence Agency ("DIA") and the Central Intelligence Agency ("CIA") - to impose a prior restraint on publication of portions of plaintiff Danny B. Stillman's ("Stillman") manuscript detailing his visits to China.1
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
1 The Department of Energy ("DOE") is also a named defendant as it initially sought to block portions of the manuscript. However, it has withdrawn all opposition following an agreement that certain language would be either deleted or modified. See Exhibit "1".Having absolutely no lawful authority to take these actions, the government endeavors to cloak its behavior as legitimate by hiding behind an unconstitutional interpretation of the secrecy agreement executed by Stillman, who is a former employee of the Los Alamos National Laboratory. However, the ability of the government to inhibit First Amendment rights extends only to that information obtained directly through the scope of employment of the individual bound by a secrecy agreement. The dissemination of information gathered as a private citizen, under circumstances having no relationship to a secrecy agreement, cannot be blocked by the government.
Stillman served as an employee of the University of California's Los Alamos National Laboratory ("LANL") from 1965-1993. He was the leader of LANL's intelligence division from July 1978 to January 1992, and retired in November 1993. See Declaration of Danny B. Stillman at 2 (dated August 16, 2001)("Stillman Decl."), attached as Exhibit "2". While employed at LANL, Stillman often personally briefed high-level government officials including, but not limited to, three Directors of Central Intelligence (William J. Casey, William Webster and Robert Gates), William Sessions, Director of the Federal Bureau of Investigation, Henry Kissinger, former Secretary of State, Zbigniew Brzezinski, President Carter's National Security Adviser, Caspar Weinberger, President Reagan's Secretary of Defense, then Congressman (and now Vice-President) Dick Cheney, and several Chairmen of the Joint Chiefs of Staff, Directors of the National Security Agency and the DIA. Id. In December 1991, Stillman received the Director's Public Service Award from the Director of the Defense Intelligence Agency, and in June 1992, he was awarded the Intelligence Community Seal Medallion - the highest non-employee award - from the Director of Central Intelligence. Id. at 3.
As a condition of his employment with LANL, Stillman executed a secrecy agreement. See Exhibit "3". The agreement obligated Stillman to prevent the release of any classified information he obtains through the course of his employment absent official authorization. Because he had access to Sensitive Compartmented Information (SCI), Stillman was also required to submit any writings for prepublication review. Id.
Between Spring 1990 and Summer 1999, Stillman made nine trips to China. During his trips, he visited nearly all of China's nuclear weapons facilities including their nuclear weapons test site and participated in extensive discussions with Chinese scientists, government officials, and nuclear weapon designers. While in China Stillman maintained a journal in which he documented his experiences of what he saw and heard, and who he met. See Stillman Decl. at 5.
Stillman's first three trips to China occurred while he was still an employee of the University of California at LANL. However, the trips were not undertaken at the behest of the United States government, nor were they requirements of his LANL employment. In fact, the Chinese government was financially responsible for all expenses he incurred within China. Id. at 6.
The fourth, fifth and sixth trips occurred subsequent to Stillman's retirement from LANL in 1993. The only United States government involvement was limited to one of the defendants voluntarily reimbursing Stillman for the costs of his travel to/from China after his return. No contractual arrangement existed between Stillman and the United States government, nor did this agency's willingness to later reimburse Stillman affect the existence of any of the trips or his likelihood of travel. The Chinese government again assumed financial responsibility for all expenses incurred within China. Id. at 7.
The final three trips (seventh, eighth and ninth) had absolutely no United States government involvement. Stillman's travels were purely as a private American citizen. His funding for the trips was entirely provided by Stanford University. Id. at 8.
After each trip to China, Stillman voluntarily met with a representative of a United States government agency and informed this individual on what he saw and heard in China. The use of Americans, particularly tourists or businessmen, to obtain information that United States government operatives cannot is commonplace within the intelligence community. Indeed, this is public knowledge. For example, as author Ronald Kessler documents in Inside The CIA (Pocket Books, 1992), the CIA's Domestic Resources Division within its Directorate of Operations openly asks "Americans who travel overseas to report on what they see once they return. During the war in the Gulf, the domestic collection office obtained plans for Iraqi targets from American and other businessmen who had helped build them." Id. at 21. Even University professors are often asked by the CIA to provide information concerning their travels. Id. at 22. Stillman's travels were not undertaken as part of a governmental assignment, nor was he under any obligation, legal or otherwise, to report on what he observed. He merely acted as a loyal American citizen who shared what information he obtained as a private traveler. See Stillman Decl. at 9.
Based entirely on what he personally witnessed, heard or was openly given by Chinese government officials and scientists, and using his journal as a guide, Stillman authored a manuscript - Inside China's Nuclear Weapons Program - approximately 506 pages in length detailing his nine visits to China. Because his responsibilities at LANL included classifying and declassifying information on a regular basis, Stillman was well versed as to whether any information within his manuscript should be considered classified. The manuscript was specifically written with the intention of excluding any classified information. This is precisely why it did not include any analysis or comparison between the nuclear weapons programs of China and the United States. Id. at 10.
Stillman Initiates The Prepublication Review Process
On January 5, 2000, a copy of Stillman's manuscript was hand-delivered to the DIA for the purposes of prepublication review. See Exhibit "4". The DOE was provided a copy one week later. See Exhibit "5". Both agencies were required by the terms of Stillman's secrecy agreement and internal regulations to respond within thirty days from the time Stillman submitted his manuscript for review. See Exhibit "3" at 5. neither agency abided by this requirement.
On April 11, 2000, Stillman met with Jeff Zarkin, Document Declassification Division, Office of Nuclear and National Security Information, DOE, at which time Zarkin presented the DOE's classification concerns and eleven recommendations for deletions or rewording. Every change that DOE recommended was willingly and without hesitation incorporated into Stillman's manuscript. See Stillman Decl. at 12. Shortly thereafter, by Memorandum dated April 27, 2000, Anton A. "Joe" Sinisgalli, Director, Document Declassification Division, Office of Nuclear and National Security Information, DOE, noted that Stillman's manuscript allegedly contains information "classified Secret Restricted Data (SRD) and Secret National Security Information (SNSI)." He further indicated that DOE had not conducted a "meticulous line by line review of the manuscript, but rather have highlighted general areas of concern." See Exhibit "6".2
2 Stillman resubmitted a copy of his manuscript that addressed DOE's classification concerns by letter dated June 26, 2000.Although DOE had provided substantive recommendations, DIA had still failed to respond despite the fact that five months had elapsed. Therefore, by letter dated June 7, 2000, Stillman wrote the DIA's Office of Public Affairs requesting information on how to appeal the long delay in reviewing his manuscript. See Exhibit "7"; Stillman Decl. at 13. Apparently coincidentally, by letter dated June 2, 2000 (though surprisingly not received until June 15, 2000), Charles W. Hoing, Public Affairs Office, DIA, notified Stillman that the review of his manuscript was still ongoing, that the DIA has discovered that the "manuscript's contents involves [sic] the equities of several organizations", that an "[i]nitial review by officials within the Office of the Secretary of Defense (OSD) identified a number of concerns resulting in a complete objection to publication of the manuscript", that "DIA's review involves a line-by-line assessment of the material in order to alleviate OSD concerns and to permit publication of as much information as possible", and that "some information in your manuscript if disclosed would cause damage to U.S. intelligence operations and U.S. national security." Finally, Hoing noted that he was "unable to offer a specific anticipated date for completion of the review, but significant progress is being made." See Exhibit "8"; Stillman Decl. at 13.3
3 In response to Stillman's letter dated June 2, 2000, Betsy K. Scrivner, Chief, Public Affairs, DIA, informed Stillman by letter dated June 16, 2000, that his manuscript has "NOT been denied for publication." See Exhibit "9". She also noted that it was "premature to bring an appeal right now." By letter dated June 25, 2000, Stillman notified Scrivner that he had been informed by Senator Pete Domenici's office that the DIA's review will be completed no later than the end of July 2000. See Exhibit "10"; Stillman Decl. at 14.Two months later, by e-mail dated August 2, 2000, Hoing notified Stillman that DIA had completed its review but was required to staff the review through the Department of Defense Directorate for Freedom of Information and Security Review ("DFOISR"). See Exhibit "11". This message was followed by a letter dated August 31, 2000, from Laurie S. Kelly, Chief Public Affairs, DIA, in which she notified Stillman that:
[d]ue to the manuscript's content and the significant extent of Department of Defense (DoD) equities beyond the purview of DIA, DFOISR determined it necessary to take responsibility for the review of the manuscript. The review process is not being delayed, but DFOISR has assumed responsibility for the overall DoD review and final determination of the DoD position regarding publication of your manuscript.Once again the government was delaying the completion of the review of Stillman's manuscript. DIA now indicated that processing was expected to be completed by September 15, 2000. See Exhibit "12"; Stillman Decl. at 15.
Unbeknownst to Stillman at the time, by Memorandum dated September 12, 2000, C.Y. Talbott, Deputy Director, DFOISR, notified Jeff Zarkin, DOE, that the:
Department of Defense objects to public release of the manuscript. While we have compiled a classified list of security and policy concerns (see the attachment) and completed a line by line assessment (see bracketed document), we have determined that excisions will not correct the problems this manuscript presents. There are far too many instances where the information in the manuscript merits classification in accordance with the provisions of Executive Order 12958. Public release of this document could, therefore, reasonably be expected to damage the security concerns of the United States. Additionally, open publication could also damage American foreign relations with China and have a deleterious effect on future scientific exchanges between the two countries.See Exhibit "13".4 For some reason, DOE failed to timely notify Stillman of DFOISR's decision. Finally, six weeks later, by Memorandum dated October 23, 2000, Roger K. Heusser, Acting Director, Office of Nuclear and National Security Information, DOE, informed Stillman that DOE agreed to respond on behalf of itself and the DoD. See Exhibit "14"; Stillman Decl. at 16. Heusser then revealed the contents of the DoD Memorandum dated September 12, 2000, and noted that DoD objected to the "public release of any part of the manuscript". Id. Because of the DoD position, the DOE decided not to review the manuscript's revised pages since "our review of the revised pages will be of no use to Dr. Stillman." The DOE never properly notified Stillman of the government's position, nor did it alert him to any existing administrative appellate remedies. Importantly, Heusser misidentified Stillman as a DOE employee and mistakenly noted that all of Stillman's trips to China were made on governmentally funded travel. Id. Neither statement was true.
4 The Memorandum also indicated that the "Central Intelligence Agency concurs with the Department of Defense assessment and has identified additional areas of concern which have been included in the attached list." See Exhibit "13". The attached list remains allegedly classified and has not been released.From the date of receipt of the DOE Memorandum of October 23, 2000, through late March 2001, Stillman did not hear from the government. Since he believed his manuscript failed to contain any classified information, Stillman retained legal counsel in order to pursue the release of his own work. Id. at 17.
Extensive Efforts By Stillman's Counsel To Negotiate A ResolutionExtensive efforts were undertaken by Stillman's counsel for a period of nearly three months in which the defendants were given a variety of opportunities to reach an amicable resolution. Except for the appearance of token gestures that amounted to little, the government was uncooperative, as the evidence detailed below demonstrates. See Declaration of Mark S. Zaid, Esq., at 4 (dated August 16, 2001), attached as Exhibit "15".
Department of EnergyBy letter dated March 20, 2001, Stillman's counsel requested that the DOE permit him to review the manuscript, and that DOE identify any remaining interests or concerns it may have. See Exhibit "16"; Zaid Decl. at 4.5 This initial contact was followed by a letter dated March 29, 2001, in which Stillman's counsel requested that the DOE conduct a full review of the manuscript, identify the designated classification authority and the classification categories at issue, process this matter separate from that of any other interested federal agencies, and schedule a meeting at the earliest opportunity to discuss the manuscript. See Exhibit "17"; Zaid Decl. at 8. The DOE never responded to Stillman's requests. Id.
5 Stillman's counsel holds a proper security clearance from the DIA that would lawfully permit him to review the information contained within the manuscript. Additionally, he is also cleared for access to certain information by the CIA. See Zaid Decl. at 5. In fact, Stillman's counsel had previously participated in a prepublication review process involving classified information and a former CIA employee. Id.Additional letters were sent to DOE on April 4, 2001, April 10, 2001, April 23, 2001 and May 16, 2001, the latter to the Acting General Counsel, attempting to seek cooperation from the DOE regarding the review of Stillman's manuscript. See Exhibits "18-21". The DOE failed to respond to each and every attempt. See Zaid Decl. at 6.
Department of DefenseBy letter dated March 29, 2001, Stillman's counsel contacted Henry McIntyre, Director, DFOISR, and requested (1) an opportunity to meet with DoD officials, (2) the identification of the designated classification authority, (3) the classification categories DoD believes are at issue, (4) clarification of the grounds upon which DoD believes the information within the manuscript is owned by, produced by or for, or is under the control of the DoD or U.S. government, and (5) the authority under which DoD believes it may classify Stillman's manuscript.6 Additionally, McIntyre was notified that Stillman was never an employee of DOE, that DoD should permit Stillman's counsel to review the manuscript and that DoD must ensure that dissemination of the manuscript is limited to those who are participating in the classification review only due to copyright and propriety interests. See Exhibit "24"; Zaid Decl. at 8. By letter dated April 5, 2001, McIntyre, Director, DFOISR, notified Stillman's counsel that he had received the letter dated March 29, 2001, and was soliciting comments from the classification authorities. See Exhibit "25"; Zaid Decl. at 8.
6 Stillman's counsel first contacted William J. Allard, General Counsel, DIA, by letter dated March 20, 2001, to request an opportunity to meet with DIA officials and discuss possible misunderstandings regarding the origins of the manuscript and to be properly cleared to review the manuscript. See Exhibit "22"; Zaid Decl. at 7. Allard immediately responded and indicated that "they were aware of the circumstances under which much of the information in the manuscript was acquired" and that questions regarding review of the manuscript should be addressed to the DFOISR. See Exhibit "23"; Zaid Decl. at 7.By letter dated April 10, 2001, Stillman's counsel again requested that a meeting with DoD officials occur no later than April 20, 2001, to discuss the many legal issues surrounding the manuscript, particularly because:
The information was not obtained as a result of Mr. Stillman's employment or through his continuing access to classified information as per his arrangement with the Department of Energy ("DOE"). His foreign trips were not undertaken on the instructions or behest of the United States government. He was under absolutely no obligation to discuss what he saw or heard, or provide any reports to the government regarding his observations. That he did so voluntarily, much in the same way American businessmen did following trips to the Soviet Union in the 1950s, does not create in DoD or any other federal agency the legal authority to prevent the publication of Mr. Stillman's manuscript. The only obligation that does impact upon Mr. Stillman is that he submit his manuscript for review to the DOE (and perhaps the DoD if, in fact, he did execute a secrecy agreement with a DoD component; a fact that still requires clarification) to ensure that classified information obtained during his employment or provided to him as a continuing result of his access is not improperly released. He has fulfilled that responsibility.See Exhibit "26"; Zaid Decl. at 9. No meeting ever occurred, although McIntyre telephoned Stillman's counsel on April 23, 2001 to generically discuss the manuscript. Stillman's counsel once again contacted DoD by letter dated May 16, 2001, and again requested that a meeting with DoD officials occur no later than May 25, 2001.7 See Exhibit "27"; Zaid Decl. at 9.
7 On May 16, 2001, the Washington Post ran a front page article entitled The Man Inside China's Bomb Labs: U.S. Blocks Memoir of Scientist Who Gathered Trove of Information, which profiled Stillman's situation. See Exhibit "28". In fact, the media has shown a repeated interest in the government's effort to silence Stillman, as evidenced by the many articles that have appeared. Id.By letter dated May 23, 2001, McIntyre, Director, FOISR, notified Stillman's counsel that a meeting had been scheduled for May 24, 2001, for the representatives of the various involved agencies to discuss Stillman's manuscript. The government was then prepared to meet with Stillman's counsel on May 25, 2001, or a later mutually acceptable date. See Exhibit "29"; Zaid Decl. at 10. On May 25, 2001, Stillman's counsel participated in a telephone conference call with McIntyre, Director, FOISR, and Stewart Aly, a DoD attorney. DoD indicated that it had completed its review and understood it could not withhold the entire manuscript, but that DOE had not yet finished its review of the manuscript and required at least an additional three weeks. Furthermore, notwithstanding the DIA's earlier comments that it was aware of the origins of Stillman's manuscript, DoD was still under the impression that all nine of Stillman's trips to China involved the U.S. government. Stillman's counsel responded that this was not true, and would further clarify the issue in writing. Id.
By letter dated May 29, 2001, Stillman's counsel provided DoD with clarification regarding Stillman's relationship with the government on each of the trips he made to China. The DoD was requested to notify Stillman of the government's legal position with respect to the nine trips. Stillman offered to wait a reasonable amount of time to permit the government to adjudicate the information regarding his first three visits to China, if it conceded it cannot preclude Stillman from publishing information obtained during trips four through nine. However, this offer anticipated that the government would enter into good faith negotiations to substantively discuss how to ensure that as much information is declassified as possible regarding the first three trips. A response was requested no later than June 1, 2001. See Exhibit "30"; Zaid Decl. at 11.
By letter dated June 1, 2001, McIntyre, Director, DFOISR, reiterated that the DOE's line-by-line review of the manuscript will take at least three weeks. He noted that "[a]bsent a DOE position, we cannot provide a consolidated position on the status of the manuscript. In addition, we are attempting to determine Mr. Stillman's status on all his trips to China based on information available to our agencies. We are working diligently to complete these actions as quickly as possible, but until then we have no basis to establish the government's legal position or offer options for your client's consideration." See Exhibit "31"; Zaid Decl. at 12.
By letter dated June 5, 2001, Stillman's attorney notified the DoD (with copies also sent to the DOE and DIA) that litigation would be initiated on or after June 18, 2001, unless all reviews had been completed and substantial segregable portions of the manuscript had been approved for release, particularly in light of the circumstances set forth in his letter dated May 29, 2001. Furthermore, no delays would be permitted pertaining to Stillman's attorney's access to the manuscript since a proper security clearance request had been pending since March 2001. See Exhibit "32"; Zaid Decl. at 13.
By letter dated June 8, 2001, Stillman's attorney requested that DoD identify the current classification level of the manuscript. See Exhibit "33". This was to ensure that the manuscript was not classified at a level higher than the clearance level possessed by Stillman's attorney. By letter dated June 11, 2001, McIntyre, Director, DFOISR, indicated that the "Department of Defense reviewers have tentatively determined that the manuscript contains information that should be classified at the SECRET classification level. Although this office is affording the appropriate security safeguards, the manuscript has not been formally classified by a classification authority. The classification decision will not be final until such a formal determination is made at the end of our review. I cannot comment on the Energy Department's actions or determinations in this matter." See Exhibit "34"; Zaid Decl. at 14.8
8 Thus, DoD admitted that the manuscript is classified at a level for which Stillman's attorney is cleared for access through the DIA. Yet the government has still not permitted Stillman's attorney access to the "classified" version of the manuscript.By letter dated June 15, 2001, which was received at the end of the business day, McIntyre, Director, DFOISR, indicated that a meeting of the reviewers from the relevant agencies was scheduled for June 19, 2001, and proposed a meeting to occur sometime the week of June 25, 2001. See Exhibit "35"; Zaid Decl. at 15. Stillman's attorney responded immediately and notified DoD that the requirements set forth in his letters dated May 29, 2001 and June 5, 2001, had not been met; particularly that the defendants had still not notified Stillman of the extent to which he will be able to publish his manuscript. See Exhibit "36"; Zaid Decl. at 15.
Actions Taken Subsequent To Filing Of Complaint
Stillman filed this action against DOE, DoD, DIA and CIA for injunctive and declaratory relief on June 18, 2001. Within days the government had notified Stillman that release of a substantial portion of the manuscript was imminent. Within two weeks later the defendants released approximately 85% of the manuscript. Thus, for nearly 19 months the government had asserted that not a single word of the manuscript could be published because of the dire national security dangers it posed to the United States, but then reversed its position after Stillman incurred the time and expense of initiating litigation. See Zaid Decl. at 16; Stillman Decl. at 18.
Following the partial release of the manuscript, Stillman agreed to enter good-faith negotiations regarding the remaining portions that were still being withheld. Unbelievably, after the DOE had delayed the review of Stillman's manuscript for months, it only requested four minor changes be made. Id.; Zaid Decl. at 17. By letter dated July 11, 2001, DOE noted that "[w]hen these four changes have been made, all DOE classification concerns with the current version of the manuscript will have been resolved." See Exhibit "1". As he had done before, Stillman unhesitatingly agreed to incorporate the suggested changes. See Stillman Decl. at 19.
Unfortunately, the other defendants were not as forthcoming. The government continues to refuse to permit Stillman's counsel to participate in any review or discussion of the redacted portions of the manuscript. See Zaid Decl. at 18; Stillman Decl. at 20. Despite this position, Stillman agreed to one last effort without counsel present. On July 19, 2001 Stillman participated in a conference call with representatives of the remaining government defendants. The intended purpose was to discuss specific redactions contained within his manuscript and possibly arrive at mutually acceptable accommodations. Id. The meeting, which only lasted 83 minutes, was a complete waste of time due to the unwillingness of the government to engage in substantive discussions. The defendants' representatives would neither discuss specific withholdings or even entertain potential language modifications. Instead, the government made it clear that its classification positions were non-negotiable. Id.9
9 The government has claimed the unproductive meeting was due to technical difficulties. Although there were technical problems associated with the telephone discussion which created certain transmission difficulties, the larger problem lay not in the transmission difficulties, but in the steadfast silence that emanated from the government even when the telephone was working. See Stillman Decl. at 20.Although the meeting was unproductive, Stillman did agree to submit his public source information to the government for consideration. This was done shortly afterwards, and the DoD received the information on August 3, 2001. Id. at 21. Beyond correspondence between the parties' counsel, the government has done little or nothing since the filing of this case to facilitate the resolution of this dispute. See Exhibit "37". Thus, Stillman has been forced to seek judicial review.
To support a motion for summary judgment, it must be demonstrated that there are no genuine issues existing as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A Court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movants bear "the initial responsibility of informing the district court of the basis for their motion and identifying those portions of the record which show lack of a genuine issue." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to overcome a summary judgment motion, the nonmoving party must designate "specific facts showing that there is a genuine issue for trial." Id. at 324; Fed.R.Civ.P. 56(e). The necessary proof that must be produced is not precisely measurable, but must show "'sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" First Nat'l Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289 (1968). If the Court can conclude that a reasonable trier of fact could return a verdict for the nonmovant, then summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Based on the facts and arguments set forth herein, and the exhibits attached hereto, Stillman has demonstrated he is entitled to partial summary judgment.
I. A SIGNIFICANT PORTION OF THE INFORMATION CONTAINED IN STILLMAN'S MANUSCRIPT WAS GATHERED OUTSIDE THE SCOPE OF HIS EMPLOYMENT AND THEREFORE THE GOVERNMENT CANNOT BLOCK ITS PUBLICATION
The most important question before this Court is perhaps the most straightforward.10 To what extent was the information in Stillman's manuscript obtained through the course of his employment with LANL and fell under the obligations imposed by his secrecy agreement? The answer to this question will determine whether Stillman is free to publish a significant portion of the withheld sections of his manuscript, for the defendants cannot lawfully block publication of any information gathered outside of Stillman's employment or which he did not receive because of his secrecy agreement.11 The subject matter of the information matters not at all. This issue is simply one of law and timing.12
10 Two preliminary matters regarding the prepublication review process that are not in dispute require mentioning. First, Stillman's secrecy agreement clearly imposes a prepublication review obligation which remains in effect even after his retirement. See Exhibit "3" at 4. This action does not seek to challenge the constitutionality of the prepublication review requirement. Second, Stillman has complied with this requirement. See Stillman Decl. at 12. Therefore, Stillman's circumstances are not analogous to those faced in Snepp v. United States, 444 U.S. 507 (1980), where a former CIA employee was found to have breached his fiduciary duty to comply with the CIA's prepublication review requirement.There is a specific factual and legal distinction between information obtained through the course of employment and that obtained after employment ceases.13 Stillman's secrecy agreement states that "all information to which I may obtain access by signing this Agreement is now and will forever remain the property of the United States Government." See Exhibit "3" at 8.14 Though circumstances such as those faced by Stillman have rarely arisen during the last three decades, the legal precedents that do exist all speak in unison: censoring information obtained outside the course of employment violates the First Amendment.
11 Should the Court find it desirable to examine a copy of the manuscript in camera, Stillman is willing to submit a copy to the Court under seal (due to the proprietary nature of the information). Such a review will certainly be necessary when specific challenges to redacted portions of the manuscript are at issue.
12 It should be made clear upfront that this case is nothing like that seen in United States v. Progressive, Inc., 467 F.Supp. 990 (W.D.Wis. 1979) and United States v. Progressive, Inc., 486 F.Supp. 5 (W.D.Wis. 1979), both of which upheld injunctions against the publication of unclassified information by individuals who were not even subject to secrecy agreements. In these cases the information consisted of "restricted data" which was protected by the Atomic Energy Act of 1954. The Act broadly prohibits anyone from disseminating restricted data to any person "with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation." 42 U.S.C. § 2274. Given that there is no restricted data within Stillman's manuscript, the defendants must prove he obtained the information through the course of his employment at LANL in order to impose a lawful obligation upon him.
13 Of course, a similar legal question exists when dealing with an employee possessing a secrecy agreement who obtains information outside of the scope of his employment, but while still employed (i.e., during a personal vacation). See United States et el. v. National Treasury Employees Union et al., 513 U.S. 454 (1995). However, given that Stillman's situation is more narrow (i.e., information obtained before and after employment), it is likely not necessary to address the broader - and undoubtedly more complicated - legal issue.In United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), the CIA sought an injunction against one of its former employees to block the publication of his book prior to prepublication review.15
14 This is not to suggest that Stillman's manuscript can be claimed as property of the United States government. Stillman does not necessarily dispute the principles that works created on government time and with government materials are considered the property of the government and not of the person who created it. See Pfeiffer v. CIA, 60 F.3d 861 (D.C.Cir. 1995). However, while there may be a factual dispute that exists with respect to Stillman's first three trips to China, which occurred while Stillman was still a LANL employee, the six other trips he made had either little or absolutely no governmental involvement. Stillman's manuscript was clearly not created in the course of his official duties. It was not written on government time. The information was not gathered on government time. Nor was the information even gathered at the expense of the government. To the extent that the government chose to pay for three of Stillman's trips abroad, it did so only after the fact in appreciation for Stillman sharing the information he had gathered. There was no contractual relationship that required the payment or cooperation. Therefore, the work is the property of Stillman and not the government.
15 Unlike the plaintiffs in Marchetti, Stillman has not threatened to publish any information that the defendants have claimed is "classified", no matter how absurd he believes that decision might be. However, this does not diminish the significance of the First Amendment issues at stake. Even though the government is not proactively seeking an injunction from this Court, the circumstances that have befallen Stillman have implicitly the same affect - he cannot publish his own writings.At the time the CIA's secrecy agreements did not explicitly contain prepublication review clauses. Id. at 1312 fn.1. The Fourth Circuit Court of Appeals opined that:
Marchetti by accepting employment with the CIA and by signing a secrecy agreement did not surrender his First Amendment right of free speech. The agreement is enforceable only because it is not a violation of those rights. We would decline enforcement of the secrecy oath signed when he left the employment of the CIA to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights. Thus Marchetti retains the right to speak and write about the CIA and its operations, and to criticize it as any other citizen may, but he may not disclose classified information obtained by him during the course of his employment which is not already in the public domain.Id. at 1317 (emphasis added).16 Thus, this language clearly stands for two propositions. First, an individual can publish "classified" information learned outside the course of employment, i.e., not through the relevant secrecy agreement.17 Second, classified information learned during the course of employment can be published if it is determined to already be in the public domain. Both propositions are valid in this case, but it is the first principle that is the paramount issue at stake.
16 The Court also stated that "we are here concerned with secret information touching upon the national defense and the conduct of foreign affairs, acquired by Marchetti while in a position of trust and confidence and contractually bound to respect it." Marchetti, 466 F.2d at 1313 (emphasis added). This is simply not the case facing Stillman.Following the Marchetti decision, which upheld the issuance of the CIA's injunction, Marchetti's publisher instituted a companion lawsuit challenging the CIA's specific objections to portions of the manuscript. In Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975), the Court ruled that a secrecy agreement "of course, covers only information learned by [an employee] during their employment and in consequence of it. It does not cover information gathered by them outside of their employment or after its termination." Id. at 1371 (emphasis added).18 The Snepp case was no different. The Court upheld the government's "system of prior restraint against disclosure by employees and former employees of classified information obtained during the course of employment." Snepp, 456 F.Supp. at 182. Thus, it is clear, that the information in Stillman's manuscript that pertains to the trips taken after he retired from LANL in 1993 are not covered by his secrecy agreement. Therefore, the defendants cannot prevent Stillman from publishing the information.
17 This distinction is very important. The very fact that information may be "classified" does not, in and of itself, create an obligation on the part of an individual to refrain from publishing it. There has to be an affirmative legal obligation that exists. Unlike the United Kingdom, the United States does not have an Official Secrets Act. For example, the government has classified information Stillman obtained on his last three trips to China, which he made completely as a private citizen. Neither Stillman or for that matter any private citizen is under any legal obligation to protect that information. However, any government official who was provided with a copy of the information through the course of their respective employment does have an obligation under their own secrecy agreement. Although there is no obligation to protect information obtained outside the course of employment, Stillman's secrecy agreements clearly obligates him to abide by the prepublication review requirement even after his LANL employment ended. This would include works of poetry or a book on gardening. Of course, no reasonable person would consider such writings to be classified.
18 In a more detailed explanation, the Court noted "[w]e decline to modify our previous holding that the First Amendment is no bar against an injunction forbidding the disclosure of classifiable information within the guidelines of the Executive Orders when (1) the classified information was acquired, during the course of his employment, by an employee of a United States agency or department in which such information is handled and (2) its disclosure would violate a solemn agreement made by the employee at the commencement of his employment." Knopf, Inc., 509 F.2d at 1370 (emphasis added). The information Stillman obtained during his post-1993 trips to China were neither acquired during the course of his employment nor violates any solemn agreement between Stillman and LANL. Stillman only agreed to protect classified information he learned while employed, and to submit any writings for prepublication after his employment. He has done just that, and the government cannot require him to do more.Not only do the prior judicial precedents support this argument, but both the CIA and Department of Justice do as well. In McGehee v. Casey, 718 F.2d 1137 (D.C.Cir. 1983) a former CIA employee brought an action seeking a declaratory judgment that the CIA classification and censorship design violated the First Amendment and that the article he was attempting to publish contained no properly classified material. Just as with Stillman, McGehee's secrecy agreement imposed a prepublication review requirement. The CIA deleted portions of his article under the guise that the information was classified. Id. at 1139. The District Court rejected McGehee's First Amendment challenge to the CIA's classification and censorship scheme and upheld the CIA's classification decisions. Id. McGehee appealed the decision.
In its brief to the United States Court of Appeals for the District of Columbia, the CIA - as represented by the Department of Justice - repeatedly set forth the very legal and factual argument Stillman offers now. It argued that:
In deciding the McGehee case, the D.C. Circuit Court of Appeals ruled that the secrecy "agreement does not extend to unclassified materials or information obtained from public sources. The government may not censor such material, 'contractually or otherwise....' The government has no legitimate interest in censoring unclassified materials. Moreover, when the information at issue is derived from public sources, the agent's special relationship of trust with the government is greatly diminished if not wholly vitiated." Id. 718 F.2d at 1141 (citations omitted).19
- "McGehee's secrecy agreement with the CIA not to disclose classified information acquired in the course of his employment is enforceable and does not infringe upon First Amendment Rights." McGehee v. Casey, Brief For Appellee, Director of Central Intelligence, at i, attached at Exhibit "38" (emphasis added);
- "McGehee 'retains the right to speak and write about the CIA and its operations, and to criticize it as any other citizen may….' But he has no First Amendment right to publish classified information acquired in the course of his employment as a CIA intelligence officer." Id. at 16 (citations omitted)(emphasis added).
- "McGehee was given access to the classified information in this case, while an employee of the CIA, only on the basis of his solemn promise not to disclose it without CIA authorization, which has not been given." Id. at 17 (emphasis added).
- "The government is merely invoking McGehee's contractual promise not to reveal classified governmental information acquired by him as a CIA employee, without the government's consent." Id. at 18 fn.7.
19 The McGehee court noted that "[a]n ex-agent should demonstrate, however, at an appropriate time during the prepublication review, that such information is in the public domain." Id. at 1141 n. 9. Stillman has made every effort to cooperate with the government during the prepublication review process. However, the government has rarely reciprocated. On several occasions his counsel attempted to clarify the facts surrounding the origins of Stillman's writings, but the defendants declined to take them into consideration. See Zaid Decl. at 7-11. Following his telephone meeting with the government on July 19, 2001, Stillman submitted additional public source materials. The government acknowledged receiving Stillman's public source submissions on August 3, 2001. Although Stillman was assured that these materials would be reviewed expeditiously, the government has yet to respond how the materials impact upon its classification decisions. See Stillman Decl. at 21.Stillman was never an employee of the government. He was an employee of LANL, a government contractor. He retired in 1993. Only his first three trips to China occurred during the time he was employed at LANL. The information obtained on the fourth through ninth trips occurred in his capacity as a private American citizen. The trips were not official in nature, and were not undertaken at the behest of or for the purposes of providing information to the defendants. Not one shred of information involved with the last six trips recounted in the manuscript was obtained through the course of Stillman's employment or as a result of his secrecy agreement.20
20 Even with respect to those trips to China that Stillman made while still employed at LANL, i.e., course of employment, the information he obtained was from public sources such as seminars, speeches, and meetings that involved a large number of people from different countries including both government and non-government officials. Thus, this information is in the public domain.The DOE, which is the primary agency that provided Stillman with his security clearance, obviously recognizes the lack of its lawful authority to classify any of the information. By its letter dated July 11, 2001, DOE identified only four minor changes it would like to see in Stillman's manuscript. "When these four changes have been made, all DOE classification concerns with the current version of the manuscript will have been resolved." See Exhibit "1". These changes were incorporated without hesitation. See Stillman Decl. at 19.
There is no lawful authority for the defendants to exercise to prevent publication of the information contained in Stillman's manuscript that was gathered during his fourth through ninth trips to China. 21
21 To the extent the defendants have classified information Stillman obtained during his first through third trips, the government has failed to reasonably articulate its reasoning for its classification decisions and must do so immediately. See supra Section II at 21-27.
A. To The Extent The Government Argues That It Has The Lawful Authority To Block Publication Of Information Obtained Outside Of The Course Of Employment Then The Secrecy Agreement Is Unconstitutionally BroadIf the government argues that the information in Stillman's manuscript is nevertheless still covered by his secrecy agreement even though it was gathered outside the scope of his employment, then the contract is too broad and, therefore, is unconstitutional.
In Weaver v. U.S. Information Agency, 87 F.3d 1429 (D.C.Cir. 1996), employees of the Voice of America ("VOA") were required to submit all speaking, writing, and teaching material on matters of "official concern" to their employers for review prior to publication. Material of "official concern" was defined to include any material relating to the employee's agency or U.S. foreign policy, as well as any material that "reasonably may be expected to affect the foreign relation of the United States." Id. at1431. The Court held that the VOA did not produce evidence of "any serious evil that would justify a wide-sweeping requirement of prepublication review of all publications by any employee that touch in any way on foreign affairs or another agency related matters." Id. at 1455.22
22 See also National Federation of Federal Employees v. United States, 659 F.Supp. 1196, 1204 (D.D.C. 1988)(requirement that certain government employees not disclose any information which is "classifiable" was excessive restriction on speech which was more than necessary to protect the substantial government interest), on remand, American Foreign Service Association v. Garfinkel, 109 S.Ct. 1693 (1989)(per curiam).The case at hand is no different. Information pertaining to Stillman's fourth through ninth trips to China was gathered by him outside of the scope of his employment, not by or through his employment or because of the security clearance he was given as a LANL employee. The contents of his manuscript detail information concerning China's nuclear weapons programs and how China may have obtained much of its scientific knowledge without resorting to espionage.23
23 There is absolutely no comparison between the information in Stillman's book and that at issue in the Progressive cases. The latter cases dealt with an article that "could possibly provide sufficient information to allow a medium size nation to move faster in developing a hydrogen weapon." Progressive, 467 F.Supp. at 993. The Court was concerned with "information of sufficient destructive potential to nullify the right to free speech and to endanger the right to life itself." Id. at 995. "A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all." Id. at 996. The Court need not share the Progressive court's concern. The government has never alleged Stillman's book presents any such threat, and it does not.Although there is clear precedent that the prepublication review process itself is not unconstitutional as long as the information sought to be censored was obtained by and through an employee's work for the government, if the government now seeks to expand its control over allegedly "classified" information, then it must make that clear to its employees or contractors beforehand. See National Federation of Federal Employees, 659 F.Supp. at 1204. The ability of the government to regulate or control access to and dissemination of classified information is derived from the lawful obligation imposed by a secrecy agreement.
Since the secrecy agreement does not cover any or all information that may be classified by the government at anytime, then the contract is overly broad and unconstitutional on its face. Thus, Stillman is free to publish all information obtained during his trips to China post-retirement.
II. THE UNREASONABLE DELAY OF PROCESSING STILLMAN'S MANUSCRIPT CONSTITUTES A PRIOR RESTRAINT ON FREE SPEECH
The government's delay of over 19 months to complete the prepublication review of Stillman's manuscript constitutes an unconstitutional prior restraint on his free speech. Although a significant portion of the manuscript has now been released following the initiation of this litigation, at least 15% remains "classified" without explanation. Therefore, Stillman's First Amendment rights are still being infringed.24
24 So that the Court has some sense of what has been in dispute, one page of the manuscript has been attached as Exhibit "39". As can be seen, this page involves a discussion of Chinese farmland and skyscrapers, as well as the art museum in Shanghai. Yet this page was "classified" for 19 months under the guise that not even one word could be segregated for public dissemination.The Fourth Circuit Court of Appeals in Marchetti held that the prepublication review process was constitutional provided the agency acted on, and responded to, the request quickly.25
Marchetti, 466 F.2d at 1317.See also Weaver, 87 F.3d at 1441 ("The primary burden on employees from the regulation is simply the delay associated with submitting to the review process prior to publication. If the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians."). Further, the secrecy agreement itself provides for reviews to be completed within thirty days. It reads in relevant part:
25 Justice Stevens has also noted that "[t]he mere fact that the Agency has the authority to review the text of a critical book in search of classified information before it is published is bound to have an inhibiting effect on the author's writing. Moreover, the right to delay publication until the review is completed is itself a form of prior restraint that would not be tolerated in other contexts." Snepp, 444 U.S. at 526 fn.17 (Stevens, J., dissenting).Because we are dealing with a prior restrain upon speech, we think the CIA must act promptly to approve or disapprove any material which may be submitted to it by Marchetti. Undue delay would impair the reasonableness of the restraint, and that reasonableness is to be maintained if the restraint is to be enforced. We should think that, in all events, the maximum period for responding after the submission of material for approval should not exceed thirty days.
I further understand that the Department or Agency to which I have submitted materials will act upon them, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.See Exhibit "3" at 5 (emphasis added).
The DIA and DOE were provided a copy of Stillman's manuscript in January 2000. See Stillman Decl. at 12. The DoD and CIA received copies shortly thereafter. It took eight months, until September 2000, for the DoD and CIA to reach their decision that Stillman could not publish his manuscript. It took still another month for the DOE to convey that decision to Stillman. Id. at 16. Another nine months later - for no explicable reason other than that litigation was initiated - the defendants substantially reversed their position and released approximately 85% of the manuscript. Yet the remaining 15% remains in limbo.26 Although the DOE has withdrawn its concerns, the DoD, DIA and CIA have refused to provide any detailed explanation as to why the information remains classified. No formal final decision has ever been provided to Stillman.
26 Of course, while one might praise the government for its decision to reverse its earlier position, a reasonable person might also seriously question how the defendants' underwent such an about face on matters supposedly involving the national security interests of the United States simply because litigation was initiated. The situation that befell Stillman brings to mind Justice Stewart's famous line that "[f]or when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.... [T]he hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained." New York Times, 403 U.S. at 729 (Stewart, J., concurring).The only response that comes close to a "decision" was from DoD by letter dated June 11, 2001, where it was noted that the:
Department of Defense reviewers have tentatively determined that the manuscript contains information that should be classified at the SECRET classification level. Although this office is affording the appropriate security safeguards, the manuscript has not been formally classified by a classification authority. The classification decision will not be final until such a formal determination is made at the end of our review.See Exhibit "34". This statement, however, is not sufficient to meet the burden imposed by law upon the government to sustain its classification decision. Despite repeated requests by both Stillman and his attorney for additional information concerning the defendants' formal positions regarding the publication of the manuscript, no such information has been provided. See Stillman Decl. at passim; Zaid Decl. at passim. Nor were Stillman's repeated requests to permit his attorney to participate in a substantive meeting ever honored. Id. at passim.
The only inch, if that, given by the government occurred on July 19, 2001, when the defendants at least granted Stillman an opportunity - without counsel - to participate in a conference call with representatives of the defendants. See Stillman Decl. at 20; Zaid Decl. at 18. The intended purpose was to discuss specific redactions contained within his manuscript and possibly arrive at mutually acceptable accommodations. The government was told before the meeting occurred that Stillman was accepting its offer only if the defendants' representatives were willing to engage in specific substantive discussions. See Exhibit "37"; Zaid Decl. at 18.
However, the meeting, which only lasted 83 minutes, was a complete waste of time due to the unwillingness of the government to engage in substantive discussions. Defendants' representatives would neither discuss specific withholdings or even entertain potential language modifications. Instead, the government made it clear that its classification positions were non-negotiable. See Stillman Decl. at 20.
Thus, the government has imposed an unlawful prior restraint on Stillman by unreasonably delaying the completion of the prepublication review process.
A. To The Extent The Government Has Completed Its Prepublication Review Of Stillman's Manuscript It Has Not Justified Its Classification Decisions With Reasonably SpecificityThe defendants have asserted that its "reviewers have tentatively determined that the manuscript contains information that should be classified at the SECRET classification level." See Exhibit "34". Nothing more than this lone statement has ever been provided to Stillman. The government has clearly not satisfied its burden of demonstrating a rational link between the censored items and the motivation for classification. Stillman has a "strong first amendment interest in ensuring that [the defendants'] censorship of his [book] results from a proper classification of the censored portions." McGehee, 718 F.2d at 1148 (emphasis original).
The D.C. Circuit Court of Appeals has mandated that "[t]he courts should require that [the agency] explanations justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification. These should not rely on a 'presumption of regularity' if such rational explanations are missing." McGehee, 718 F.2d at 1148. The Court's review of the government's decisions is to be conducted de novo. Id.
In the landmark Pentagon Papers case, Justice Brennan wrote that "[t]he entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result." New York Times Co. 403 U.S. at 725 (1971).27
27 Justice Brennan added that "[e]ven if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armament would justify in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature....Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may member conclusion be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary." New York Times Co., 403 U.S. at 726 (Brennan, J., concurring).When the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
National Treasury Employees Union, 513 U.S. at 475. 28
28 "As Justice Brandeis reminded us, a 'reasonable' burden on expression requires a justification far stronger than mere speculation about serious harms. 'Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women...To justify suppression of free speech there must be reasonable grounds to fear that serious evil will result if free speech is practiced.'" National Treasury Employees Union, 513 U.S. at 475, quoting Whitney v. California, 274 U.S. 357, 376 (Brandeis, J., concurring).That the defendants even consider Stillman's manuscript to contain classified information is a farce. This case is evidence of how out of control the classification system is, as well as how unorganized their system of prepublication review is. What better demonstrates these assertions than the fact that the defendants completely reversed their position after a 19 month period simply because they faced litigation.
Former Senator Daniel Patrick Moynihan, long regarded as a leading scholar on issues of secrecy, recently served as the distinguished chair of The Commission on Protecting and Reducing Government Secrecy. The Commission's 1997 Report is widely regarded as the most important analysis of U.S. Government classification and secrecy trends published in the last four decades, and it was clear in its condemnation of secrecy for secrecy's sake. The Commission warned of the specific dangers to democracy presented by illegitimate classification:
Excessive secrecy has significant consequences for the national interest when, as a result, policymakers are not fully informed, government is not held accountable for its actions, and the public cannot engage in informed debate. This remains a dangerous world; some secrecy is vital to save lives, bring miscreants to justice, protect national security, and engage in effective diplomacy. Yet as Justice Potter Stewart noted in his opinion in the Pentagon Papers case, when everything is secret, nothing is secret. Even as billions of dollars are spent each year on government secrecy, the classification and personnel security systems have not always succeeded at their core task of protecting those secrets most critical to the national security. The classification system, for example, is used too often to deny the public an understanding of the policymaking process, rather than for the necessary protection of intelligence activities and other highly sensitive matters.Report of The Commission on Protection on Protecting and Reducing Government Secrecy xxi (GPO, 1997)("Commission Report")(emphasis added).
The Commission concluded that "[t]he best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall." Id. The Commission enumerated the advantages of an American democratic system that permits the withholding of information only if its publication would truly cause harm to the nation.
Greater openness permits more public understanding of the Government's actions and also makes it more possible for the Government to respond to criticism and justify those actions. It makes free exchange of scientific information possible and encourages discoveries that foster economic growth. In addition, by allowing for a fuller understanding of the past, it provides opportunities to learn lessons from what has gone before making it easier to resolve issues concerning the Government's past actions and helping prepare for the future.Id. Unfortunately, the defendants have not heeded the Commission's words, and now it is up to this Court to ensure they do.
III. THIS COURT SHOULD HOLD A PUBLIC EVIDENTIARY HEARING REGARDING THE GOVERNMENT'S CLASSIFICATION DECISIONS
Because of the serious and significant First Amendment concerns at stake, the government should be compelled to present its evidence in open court in order to provide Stillman an opportunity to properly cross-examine the individuals responsible for upholding the classification decisions. This procedure has been the norm in litigation challenges pitting the First Amendment against alleged national security interests.
In the four most prominent and closely analogous cases to this one, three of the four courts held evidentiary trials in which witness testimony was presented. Marchetti held a trial on the merits. Marchetti, 466 F.2d at 1312.29 Then in the successor case to Marchetti, the CIA was required to present live trial testimony from four deputy directors in an effort to sustain its burden that the information was properly classified. Knopf, 509 F.2d at 1365. "Collectively they covered all of the 168 deletion items, each covering certain of them. Each testified, in effect, that the deletion item revealed information which was classified, that the information was classified from the inception of the program or from the time of the witness' first contact with it and was still classified. Id. Furthermore, the "witnesses were questioned about the manner in which they determined that particular items had been classified." Id. at 1366.
29 "[S]ince First Amendment rights are involved, we think Marchetti would be entitled to judicial review of any action by the CIA disapproving publication of the material." Marchetti, 466 F.2d at 1317; see McGehee, 718 F.2d at 1145.Finally, in Snepp, after extensive discovery was conducted, the Court heard testimony from several CIA officials including former CIA Director Bill Colby and then-current CIA Director Admiral Stansfield Turner. Id. 456 F.Supp. at 179-180. It also received testimony from Herbert Hetu, the CIA's Director of Public Affairs. Snepp, 444 U.S. at 517 fn.2. Moreover, the dispute was initially to be put before a jury. Snepp, 456 F.Supp. at 178. However, because the Court determined all the material facts were undisputed, the jury panel was excused. Id.30
30 In the fourth case, McGehee, the CIA submitted a classified in camera affidavit which the plaintiff and one of his attorneys were provided access. They then submitted a counter-affidavit. See Brief for Appellants at 6, attached as Exhibit "38".The government's retaliatory measures which are aimed at frustrating the publication of Stillman's manuscript constitute a clear First Amendment issue that not only merits an evidentiary hearing, but also requires testimony from such officials as the Secretary of Defense, and the Directors of the CIA and DIA, as well as the relevant federal officials who actually classified the disputed portions of the manuscript.
A. The Court Should Order The Defendants To Permit Stillman's Attorney To Have Access To The "Classified" Version Of The ManuscriptIt is unprecedented that the defendants have intentionally excluded Stillman's attorney from participating in any negotiations involving discussion of the alleged classified information. Not only does Stillman's attorney already possess the requisite clearances from two of the defendants for access to SECRET information, see Zaid Declaration at 4, but in the past agencies have routinely permitted the writer's attorney to participate in the prepublication review process. See Knopf, 509 F.2d at 1365 (attorneys permitted to participate in discussions with CIA to reduce deletions); McGehee, Brief for Appellants at 6 (plaintiff and attorney permitted to review classified CIA in camera affidavit justifying classification decisions), attached at Exhibit "38".31
31 Indeed, in 1996, the CIA permitted Stillman's attorney to participate in an identical prepublication review process involving a manuscript authored by a then-current CIA employee. See Zaid Decl. at 5.Whether it is to participate in a formal discussion between the parties, or before a formal hearing before this Court, it is clear that Stillman's attorney has a need to know the redacted information within the manuscript. Given that he already possesses the requisite security clearance, this Court should order that access be immediately provided.
For the foregoing reasons asserted above, Plaintiff's Motion for Partial Summary Judgment should be granted.
Date: August 17, 2001
Mark S. Zaid, Esq.
Lobel, Novins & Lamont
1275 K Street, N.W.
Washington, D.C. 20005
Counsel For Plaintiff