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.)