FAS

Court Favors Attorney’s Right to Classified Info

02.27.09 | 2 min read | Text by Steven Aftergood

A federal court this week said that litigants have a First Amendment right to provide classified information to their attorneys when doing so is necessary to protect their interests.  The ruling is implicitly at odds with a common government practice of denying attorneys access to classified information in Freedom of Information Act cases, pre-publication review disputes, and other matters.

There is a “First Amendment right to share [classified] information with an attorney when such sharing is necessary for an attorney to advise his client of his rights,” wrote Judge Gladys Kessler (pdf) of the DC District Court.

The ruling came in a lawsuit brought by former Defense Intelligence Agency employee Anthony Shaffer against the DIA in connection with the controversial intelligence program known as Able Danger.  DIA sought to bar Shaffer from providing classified information about the program to his attorney, Mark S. Zaid, even though he holds a security clearance.  Mr. Zaid challenged the denial, and the court found merit in his complaint.

“Without knowing all that his client, and the Defendants, know, Plaintiff Shaffer’s counsel cannot be prepared to adequately represent his client’s interests,” Judge Kessler concluded.

Executive branch agencies have frequently barred attorneys from access to classified information in civil litigation, effectively driving a wedge between the litigant and his counsel, particularly in disputes involving prepublication review of manuscripts that are said to contain classified information.  “I have faced this issue numerous times,” Mr. Zaid said.

The new ruling may make it harder to continue that practice.  (See more from the Legal Times blog here.)

publications
See all publications
Nuclear Weapons
Blog
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Article
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Report
Nuclear Notebook: Nuclear Weapons Sharing, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons and has been published in the Bulletin of the Atomic Scientists since 1987. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

11.17.23 | 1 min read
read more
Social Innovation
Blog
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more