| Section I |
On-Line Issues: G |
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G. Court Rebuffs Government Bid
To Classify Nuclear Weapons Book
A hot dispute was working its way through the federal judicial system in what may be the most significant clash between the First Amendment and national security since the Pentagon Papers decision more than 30 years ago. The conflict represents a multi-issue potential threat to the core of the adversarial process and the ability of current and former government employees and contractors to publish accounts of their experiences.
Danny B. Stillman served from 1965 to 1993 as an employee of the University of California’s Los Alamos National Laboratory (LANL), which was a contract facility of the Department of Energy. He retired as the leader of its intelligence division. As a condition of his employment with LANL, Mr. Stillman executed various standard secrecy and nondisclosure agreements. These agreements required Mr. Stillman to submit any writings for prepublication review.
Between 1990 and 1999, Mr. Stillman made nine trips to the People’s Republic of China. Three trips occurred while he was an employee of LANL, and six after he retired. During his trips, he visited nearly all of China’s nuclear weapons facilities and bomb testing sites and participated in extensive discussions with Chinese scientists, government officials, and weapons designers. While in China, Mr. Stillman maintained an unclassified journal in which he documented his experiences of what he saw and heard, and persons he met.
Using the contents of his personal journal, Mr. Stillman authored a 500-page manuscript entitled Inside China’s Nuclear Weapons Program, which described his nine trips. The manuscript was drafted specifically to exclude any classified information. It was submitted to the government in January 2000 for prepublication review. Although the government was required to review Mr. Stillman’s manuscript within 30 days, it was not until 10 months later that Mr. Stillman was notified that every single word of his manuscript was considered classified.
In March 2001, Mr. Stillman retained counsel, who then requested access to the manuscript. Although Mr. Stillman’s attorney had successfully resolved earlier prepublication review disputes and was routinely permitted access to classified information, the government refused to comply, claiming the attorney had no “need to know.” This not only prevented Mr. Stillman’s attorney from substantively participating in challenging the government’s classification decisions, but precluded Mr. Stillman from even discussing the contents of the manuscript with his attorney.
In June 2001, Mr. Stillman filed a lawsuit before the U.S. District Court for the District of Columbia claiming the government’s actions violated his First Amendment rights. This recourse constituted a rare event; only four prepublication review challenges had been litigated in 30 years. Two weeks after the filing of the lawsuit, the government released approximately 80 percent of the manuscript.
Although additional negotiations between Mr. Stillman and the government minimized the amount of text in dispute, the government continued to deny Mr. Stillman’s attorney access to the manuscript, as well as any allegedly classified court documents that would set forth the government’s reasoning. Moreover, the government took the position that its decision to deny counsel access to the manuscript constituted an Executive Branch determination unreviewable by the judiciary.
After eight months and the filing of 13 briefs -- which included appointment of the ACLU as an amicus -- on June 10, 2002 the district court issued a 106-page opinion that rejected the government’s position. Stillman v. Dept. of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002). It found that at least two different First Amendment interests were implicated by the government’s actions: “plaintiff’s interest in consulting freely with counsel, and plaintiff’s interest in proper classification determinations during the pre-publication review process.” Id. at 214.
To be clear, the government’s argument that its actions are beyond the review of this Court rests on a theory of separation of powers that is not and has never been the law. The implications of the arguments put forth by the government in this case are stunning. The government argues here that any and all conflicts between national security interests and individual constitutional rights can not be resolved by the Article III courts because the Constitution commits the protection of national security to the Executive Branch. If this were the law, the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), which allowed the publication of classified material, was wrongly decided. If this were the law, Snepp [v. United States], 444 U.S. [507] at 513 n.8 [(1980)], and McGehee [v. Casey], 718 F.2d [1137] at 1141 [(D.C. Cir. 1983)], which require judicial review of pre-publication classification decisions, were wrongly decided. If this were the law, the provision of the Freedom of Information Act that allows judicial review of documents withheld for national security purposes, 5 U.S.C. Sec. 552(b)(1), would be unconstitutional. If this were the law, the provisions of the Classified Information in Prosecutions Act, 18 U.S.C. App.3, Secs. 1-16, that require disclosure of classified information to criminal defense counsel, would be unconstitutional. Finally, if the government’s theory of separation of powers carried the day, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863 (1952), in [which] the Supreme Court held that the President unconstitutionally assumed the legislative power in the name of national security, was wrongly decided. Stillman, 209 F. Supp. 2d at 213.
The district court was particularly troubled by the government’s repeated argument that disclosure of the manuscript to even one additional person, namely the plaintiff’s counsel, posed an unacceptable risk of inadvertent disclosure. At no time during the process did the government contend that the plaintiff’s counsel was untrustworthy, particularly since he was routinely provided access to classified information during the course of representing other clients’ interests.
Yet the government admitted to the court that during the course of the lawsuit, numerous individuals, the exact number of which was unknown but included government counsel, had been provided access to the manuscript. Thus, the district court concluded: “If disclosure to one more person truly carries an unacceptable risk of inadvertent disclosure, government counsel’s access here has no more justification than would plaintiff’s counsel’s.” Id. at 229.
The district court ordered that the government provide the plaintiff’s counsel with access to the manuscript, following a background investigation to ensure the counsel’s trustworthiness (which was favorably adjudicated). Importantly, the district court openly declared that the inconsistent statements of the Central Intelligence Agency, in particular, that supported its position that Mr. Stillman’s counsel was not entitled to access the manuscript “strongly suggests that the CIA is denying access in litigation in order to maintain an advantage in that litigation.” Id. at 197 n.7.
The court further admonished the government: “Denying plaintiff’s counsel access to information in order to gain advantage in litigation in which a plaintiff asserts a First Amendment claim, while allowing counsel access to information at the administrative level smacks of retaliation for the assertion of First Amendment rights. Such a justification can not be said to be unrelated to the suppression of free expression.” Id. at 224 n.26.
The government appealed the district court’s decision to the U.S. Court of Appeals for the District of Columbia Circuit. Oral arguments were heard in November 2002 and a terse decision was issued on Feb. 25, 2003 that reversed the district court’s ruling. However, it did so on procedural, not substantive, grounds. It noted that “[t]he district court abused its discretion by unnecessarily deciding that a plaintiff has a first amendment right for his attorney to receive access to classified information,” because the lower court should have first attempted to “resolve the classification issue without the assistance of defense counsel.” In other words, the district court decided the constitutional question before it needed to. The case was remanded to the district court for further proceedings. Stillman v. Dept. of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), rev’d sub nom. Stillman v. Central Intelligence Agency, 319 F.3d 546 (D.C. Cir. 2003).
Footnote: Since the court of appeals ruling, two additional prepublication legal challenges have been filed against the Central Intelligence Agency by former employees/contractors for violations of the First Amendment.
--Mark S. Zaid
The author serves as the attorney for Danny B. Stillman.
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