A lawyer representing a Greek businessman and ship owner, who has accused an anti-Iran advocacy group of falsely and maliciously identifying him as part of their campaign to name and shame individuals and companies that do business in Iran, has responded to the Justice Department’s unprecedented decision to claim state secrets privilege.
Abbe Lowell represents Victor Restis in a private lawsuit filed in the US District Court of the Southern District of New York against United Against Nuclear Iran (UANI).
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.” The agency also moved to dismiss the case.
Lowell wrote a letter [PDF] to Judge Edgardo Ramos raising key objections with the government’s decision to invoke the privilege, especially the fact that the government is seemingly protecting a private organization that should not legally be in possession of “state secrets,” which the government would need to go to court to protect from disclosure.
“By all appearances, this would appear to be a purely private dispute between non-governmental parties concerning business dealings that do not concern the United States government,” Lowell argues. “And it is not at all clear why classified information would be in the hands of the non-government defendants or why they should not bear any burden for mishandling that information by disclosing it (something the government more typically treats as criminal conduct, espionage).
“If the issue is not the defendants’ possession of US government documents, but an attempt by the government to protect its or UANI’s relationships with others, then it is even less clear how the “state secrets” privilege would apply or why alternatives to dismissal could not easily be crafted,” Lowell adds.
The government in previous months had only indicated it would raise the “law enforcement privilege.” Now that the government claims “state secrets,” Lowell maintains the government should have to provide much more information so that Restis can meaningfully respond to the claim.
At this stage, it is not clear what the government thinks is a “state secret.” Lowell had no plans to use “state secrets” in the case and it is unclear how “state secrets could be relevant to the defense.”
“Are the supposed state secrets relevant to all of plaintiffs’ claims or could some proceed without implicating state secrets? What element of the claims do the state secrets relate to and could that be addressed through a stipulation as to that element or by limiting the evidence in some manner?”
“Are state secrets relevant to an affirmative defense and, if so, are defendants even asserting that defense?” Lowell additionally asks. “Is the relevance of the supposed state secrets to this case so weak or have the defendants misused information in their possession, such that the burden of not utilizing that evidence should be shouldered by them?” And, “Are alternative remedies to dismissal sufficient?”
Lowell requests the government be ordered to file some kind of public declaration that will make it possible to respond appropriately to the government’s “state secrets” claims.
“The government should make a public disclosure of what it can disclose, obscuring whatever secret needs to be obscured, but nevertheless identifying the nature of its claim that it can be tested,” Lowell concludes. “State secrets may warrant some limitation on public disclosure, but the court should not abandon the adversarial process and meaningful review of the government’s claims altogether.”
According to the government’s motion [PDF], there is a federal agency, which the government will not identify, which 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.”
Most of the time, as the motion indicates, “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.” (For additional background information, go here.)
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 importantly, why does UANI possess such “state secrets” in its files?
UANI “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,” according to its website.
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.
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.
A number of these individuals undoubtedly could have left government with knowledge of companies allegedly or actually involved in providing uranium to Iran for enrichment. They also undoubtedly could have left government with knowledge of companies allegedly or actually doing business in Iran. It would be considered to be a “state secret” that the government was spying upon or monitoring the business activity of these companies.
Did this type of sensitive information inform the decision by UANI to shame Restis for allegedly doing business in Iran? Or, were individuals in the group obtaining “state secrets” stemming from economic espionage against Restis and his companies?
If UANI were an advocacy group not aligned with the US government’s foreign policy agenda, it would be facing consequences for having “state secrets.” It may pursue the group with the same zeal in which it might pursue a human rights organization that illegally or improperly came to possess documents detailing US torture.
By protecting this group, the government is effectively blocking the public from learning details its members wish to conceal about an organization that is filled with former government officials, who previously had access to classified information. These are details Lowell doesn’t even know have anything to do with his case, but, presumably, if disclosed, the information would arouse suspicion about the nature of the group and its connection to officials in government. So, the government has decided it must act to stop this lawsuit.