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[filed August 17, 2001]

	Plaintiff,		*	
	v.			*	Civil Action No. 01-01342 (EGS)
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

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

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

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:

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:

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.

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 Resolution

Extensive 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 Energy

By 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.

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 Defense

By 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.

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:

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.

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

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

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.


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

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.

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

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:

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.

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.

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

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

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

If 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

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

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.


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

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:

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.

The only response that comes close to a "decision" was from DoD by letter dated June 11, 2001, where it was noted that the:

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.

The 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

National Treasury Employees Union, 513 U.S. at 475. 28

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:

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.

Id. Unfortunately, the defendants have not heeded the Commission's words, and now it is up to this Court to ensure they do.


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.

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

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.

It 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

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

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