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The Justice Department’s Scandalous Decision to Invoke ‘State Secrets’ & Protect an Anti-Iran Group

Attorney General Eric Holder, head of the Justice Department (US Government Photo from the Department of Education)

In an unprecedented move, the United States government has moved to invoke the state secrets privilege in a private defamation lawsuit, which does not appear to hinge upon any government activity. The government has also called for the court hearing the case to dismiss the lawsuit.

The lawsuit filed in the US District Court of the Southern District of New York involves Greek businessman and ship owner Victor Restis and others, who have accused United Against Nuclear Iran (UANI) of falsely and maliciously identifying them in their campaign to name and shame individuals or companies that do business in Iran.

The Justice Department submitted a motion [PDF] last week in which the agency indicates it has “concluded that information that would be at risk of disclosure in discovery and further proceedings is properly subject to the state secrets privilege and should be excluded from their case.”

It states, “The head of the federal agency responsible for the information at issue has asserted a formal claim of privilege, based on his or her personal consideration of the matter, and has set forth why disclosure of the privileged information could reasonably be expected to cause serious damage to the national security.”

“Because information subject to the state secrets privilege is inherently at risk of disclosure in future proceedings, the government also seeks dismissal of this lawsuit,” the motion further argues.

This action came less than two months after the President Barack Obama’s administration moved to shield the group from having to reveal its donor list and other internal documents.

As Abbe Lowell, lawyer for Restis, told The New York Times, “There is no precedent, literally, for what the government is attempting to do.”

“It is clear that UANI and its leaders know they have no defense, and so are hoping to get the government to make this case go away,” Mr. Lowell said. “The bigger question now turns to why the government is doing UANI’s bidding and exactly what relationship UANI has with the US government, other countries and its web of undisclosed financial supporters.”

Indeed, the action by the Justice Department raises key questions about whether UANI had functioned as a kind of front group for US foreign policy, but first it is important to understand the state secrets privilege and how it has been invoked in past history.

The “state secrets privilege” has its roots in a 1953 case known as United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed. In recent years, it has become known through declassified Air Force documents that fraud was likely perpetrated [PDF] by the government in this case. The fraud essentially deprived victims of judgments in court.

As a petition that was filed by victims seeking compensation for being defrauded argues, “The government concealed its fraud for decades, holding the accident reports and witness statements as ‘classified materials’ until the 1990s, even though they contained no secrets and had no conceivable further utility. Indeed, that was the Air Force’s purpose in classifying them—to bury them so deep and so long that no one would find them.”

The government in recent years has invoked the privilege in cases involving: racial discrimination against a CIA agent who initiated proceedings challenging his treatment in the workplace (Sterling v. Tenet), sex discrimination by the CIA in the workplace (Tilden v. Tenet), workplace retaliation at the FBI for whistleblower conduct after a translator uncovered infiltration by foreign agents (Edmonds v. Department of Justice), warrantless eavesdropping by the CIA, State Department and another government agency against a Drug Enforcement Agency agent stationed in Burma (Horn v. Albright).

It has also invoked the privilege in cases involving: the extraordinary rendition of an individual from the US to Syria (Arar v. Ashcroft), the assistance of a private contractor in the CIA’s rendition and subsequent torture of five individuals (Mohamed v. Jeppesen Data Plan), the abduction, beating, drugging and transportation of an individual to a secret CIA prison in Afghanistan (El-Masri v. Tenet), dragnet surveillance by the National Security Agency (Shubert v. Obama, Jewel v. NSA), warrantless surveillance of communications of customers of a private corporation (Hepting v. AT&T), the placement of a US citizen on a kill list (Al-Aulaqi v. Obama) and murder of an American community worker by US-supported Contras in Nicaragua (Linder v. Calero).

In just about all of the above-mentioned cases, the plaintiffs are alleged victims of government activity seeking redress or damages and are basically prevented from obtaining justice by the government’s decision to invoke the state secrets privilege.

Criticism of how much the government has used the privilege to seemingly conceal government misconduct and wrongdoing pushed Attorney General Eric Holder to establish new policies and procedures for invoking the state secrets privilege. But it is not clear what effect this has had on reducing the number of cases where the Justice Department claims state secrets to have a case dismissed.

The filed motion in this lawsuit cites prior case law and argues the executive branch is allowed to “protect information whose secrecy is necessary to its military and foreign-affairs responsibilities.”

It cites Tachiona v. United States a case from 2003 involving individuals who sought “redress for torture, assault, execution and other acts of violence” by Robert Mugabe of Zimbabwe, Foreign Minister Stan Mudenga and their political party, the Zimbabwe African National Union-Patriotic Front (ZANU-PF). The Justice Department argued Mugabe and Mudenga were immune from such lawsuits and won a dismissal.

“The United States was nonparty that submitted statement of interest to district court in suit against foreign officials and then intervened to pursue appeal where no other party appeared, intervention was ‘both proper and prudent,’ and United States’ foreign affairs interests were sufficiently unique and concrete to give it standing to prosecute appeal,” according to the motion.

Later, the motion states, “The various harms, against which protection is sought by invocation of the privilege, include impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities and disruption of diplomatic relations with foreign governments.”

What “state secrets” could UANI possibly possess in its files that, if made public, would disrupt diplomatic relations with foreign governments or impair the nation’s ability to protect and defend itself? More significantly, why does UANI possess such “state secrets” in its files?

Why does UANI possess information that an unidentified federal agency must exert control over? Did it come from this agency? How did it end up in the possession of UANI? And why hasn’t the government moved to prosecute and hold individuals accountable for leaking “state secrets” or retaining them without proper authorization?

UANI describes itself as a “not-for-profit, non-partisan, advocacy group that seeks to prevent Iran from fulfilling its ambition to obtain nuclear weapons.” It “was founded in 2008 by Ambassador Mark D. Wallace, the late Ambassador Richard Holbrooke, former CIA Director Jim Woolsey and Middle East expert Dennis Ross” and its campaigns have focused on “ending the economic and financial support of the Iranian regime by corporations at a time when the international community is attempting to compel Iran to abandon its illegal nuclear weapons program, support for terrorism and gross human rights violations.”

Ross served as the director of policy planning in the State Department under President George H.W. Bush, and he was also the special Middle East coordinator under President Bill Clinton.

Also, Dr. Gary Samore is now president of UANI. He is the former White House Coordinator for Arms Control and WMD Terrorism. Its advisory board includes former US senator, Joe Lieberman, former US Homeland Security advisor, Frances Townsend, former general director of Israeli Mossad, Meir Dagan, Ambassador Roger Noriega, Ambassador Otto J. Reich, former chief speechwriter and senior policy advisor to President George W. Bush, Mike Gerson and Avi Jorisch, the founder of the Red Cell Intelligence Group and former policy advisor at the US Treasury Department’s Office of Terrorism and Financial Intelligence.

All of these individuals are people with histories in government, which raises the question of whether the group has some kind of connection to intelligence agencies which have provided state secrets on individuals or companies alleged business dealings in Iran. This would help make the group very effective in shaming people.

Clearly, the Justice Department is not going to prosecute them for having state secrets, which might pose a risk to US national security if disclosed. It has, however, chosen to protect the group from having to reveal those same state secrets in a defamation lawsuit and subsequently face scrutiny.

At a time when the government has zealously engaged in a war on whistleblowers and moved to clampdown on leaks to protect classified and sensitive information, the mendacity of invoking state secrets privilege in this lawsuit is simply stunning.

CommunityFDL Main BlogThe Dissenter

The Justice Department’s Scandalous Decision to Invoke ‘State Secrets’ & Protect an Anti-Iran Group

Attorney General Eric Holder, head of the Justice Department

In an unprecedented move, the United States government has moved to invoke the state secrets privilege in a private defamation lawsuit, which does not appear to hinge upon any government activity. The government has also called for the court hearing the case to dismiss the lawsuit.

The lawsuit filed in the US District Court of the Southern District of New York involves Greek businessman and ship owner Victor Restis and others, who have accused United Against Nuclear Iran (UANI) of falsely and maliciously identifying them in their campaign to name and shame individuals or companies that do business in Iran.

The Justice Department submitted a motion [PDF] last week in which the agency indicates it has “concluded that information that would be at risk of disclosure in discovery and further proceedings is properly subject to the state secrets privilege and should be excluded from their case.”

It states, “The head of the federal agency responsible for the information at issue has asserted a formal claim of privilege, based on his or her personal consideration of the matter, and has set forth why disclosure of the privileged information could reasonably be expected to cause serious damage to the national security.”

“Because information subject to the state secrets privilege is inherently at risk of disclosure in future proceedings, the government also seeks dismissal of this lawsuit,” the motion further argues.

This action came less than two months after the President Barack Obama’s administration moved to shield the group from having to reveal its donor list and other internal documents.

As Abbe Lowell, lawyer for Restis, told The New York Times, “There is no precedent, literally, for what the government is attempting to do.”

“It is clear that UANI and its leaders know they have no defense, and so are hoping to get the government to make this case go away,” Mr. Lowell said. “The bigger question now turns to why the government is doing UANI’s bidding and exactly what relationship UANI has with the US government, other countries and its web of undisclosed financial supporters.”

Indeed, the action by the Justice Department raises key questions about whether UANI had functioned as a kind of front group for US foreign policy, but first it is important to understand the state secrets privilege and how it has been invoked in past history.

The “state secrets privilege” has its roots in a 1953 case known as United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed. In recent years, it has become known through declassified Air Force documents that fraud was likely perpetrated [PDF] by the government in this case. The fraud essentially deprived victims of judgments in court. (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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