The U.S. Government overreached by intervening in a private defamation lawsuit to assert the state secrets privilege without providing a public explanation or even identifying which agency was asserting the privilege, the plaintiff in that lawsuit yesterday.
That argument was bolstered by an amicus brief from civil liberties organizations concerning the proper use of the privilege and the alternatives to dismissal of the case.
The issue arose after Greek businessman Victor Restis filed the lawsuit last year against the private group United Against Nuclear Iran (UANI), alleging that it had falsely accused Restis of engaging in illicit commerce with Iran.
The U.S. Government, which was not a party to the case, unexpectedly asserted the state secrets privilege and moved for dismissal of the case in September, while refusing to disclose exactly why or by whom the privilege was being asserted.
“The Government’s refusal to make [any] public disclosure at all — even its basic theory of how the privilege may apply in this unprecedented setting — suggests not that nothing can be disclosed, but that the Government is again overplaying a weak hand that likely would not survive public scrutiny,” wrote Abbe D. Lowell, attorney for the plaintiff Mr. Restis.
“Assuming state secrets exist here — which Plaintiffs will not concede in this improbable setting without additional information from the Government — imposing the civil litigation equivalent of the death penalty [i.e. dismissal of the case] is not appropriate…. Reasonable alternatives do exist here that would finally permit this case to proceed to a fair adjudication of the merits,” Mr. Lowell wrote.
He urged the court to “require additional public disclosure from the Government and Defendants, and provide Plaintiffs’ counsel access to the Government’s submissions. Only then can the adversarial process test the Government’s state secrets privilege claim and, if applicable, determine the appropriate remedy.”
A similar approach was endorsed by the ACLU and several other civil liberties organizations in an October 29 amicus brief.
“The government’s refusal here to provide a public declaration supporting its assertion of the state secrets privilege is unprecedented in the annals of state secrets litigation,” the civil liberties groups wrote.
“Even in cases involving extraordinarily sensitive subject matter such as governmental torture, surveillance, intelligence, and secret weapons systems, litigants have had some basis for understanding the governmental interest in the litigation. Here, by contrast, the parties lack even the broadest contours of government’s alleged justification for the draconian result it seeks: denying a forum for a lawsuit between two private parties.”
“However, if this case is so unique that no further public disclosure is possible, the Court should respond to the unprecedented circumstances the government has created by requiring the government to disclose to security-cleared counsel for the parties the following information: the scope of the privilege assertion; the basis for believing that evidence within the scope of the privilege assertion truly is secret; and the potential harm to national security that could result from public disclosure of the evidence.”
In the end, the government’s claim that state secrets are somehow implicated in this private defamation lawsuit raises several odd and unexplained issues, the plaintiff’s attorney said.
“If the Government is asserting the theory that Defendants [United Against Nuclear Iran] cannot assert a proper defense without state secrets, then numerous questions need to be answered by the Defendants before the Court can rule on that assertion,” suggested Mr. Lowell in his brief.
“Do they [the Defendants] maintain any classified information in their files (despite procedures that would seem to prevent that)? If Defendants or their counsel do have classified information, how did they obtain that information, and do Defendants and their counsel have adequate security clearances such that they can properly access that information? Why would this information be relevant to its allegations against Plaintiffs? Would this information constitute a valid defense against a defamation claim? What element of the defamation claim would this provide a valid defense against? Do Defendants plan to even assert the defense that raises the Government’s concern? Will Defendants deny that they used whatever the Government is trying to protect in their campaign against Plaintiffs, such that the secret has not already been improperly used? Defendants should be required to answer these questions.”
The Defendants and the U.S. government are to file their respective briefs in opposition by November 12.