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Government Won’t Explain Why It Thinks ‘State Secrets’ at Risk in Lawsuit Against Anti-Iran Group

The Justice Department has informed a judge that it refuses to additionally explain why it believes “state secrets” are relevant or some how entwined in the defense of an anti-Iran advocacy group accused of defamation.

Greek businessman and ship owner Victor Restis alleges that United Against Nuclear Iran (UANI) falsely and maliciously identified him as part of a the organization’s campaign to name and shame individuals and companies that do business in Iran. But the Justice Department has moved to invoke the state secret privilege.

Despite the fact that there does not appear to be any particular government activity implicated, the Justice Department has taken this extraordinary step and asked the judge hearing the case in the US District Court of the Southern District of New York to dismiss the private lawsuit.

The government is now also refusing to offer a public declaration or any additional details to ensure that due process rights are not trampled.

“No further discussion of the nature of the privileged information can safely be set forth on the public record, consistent with national security concerns,” Assistant US Attorney Michael Byars writes in a letter to Judge Edgardo Ramos [PDF]. “Determinations as to whether certain disclosures may risk harm to national security are necessarily predictive judgments vested in Executive Branch officials with substantive expertise, and entitled to ‘utmost deference.'”

The state secrets “doctrine,” Byars further argues, “warns against proceedings that might risk disclosure of the privileged information.” And, “Whether there can be any public discussion of the privileged matter turns on what is ‘possible’ and ‘practicable’ in the circumstances of the particular case.”

Last week, Abbe Lowell, an attorney representing Restis, protested the Justice Department’s decision to invoke “state secrets.” He wrote a letter to the judge [PDF] and raised critical questions related to the issue of why UANI even has “state secrets,” which require protection, when they are not a government agency or group.

More practically, Lowell addressed the fact that it was impossible to tell what the government thought was a “state secret.” He had no plans to use any “state secrets” to make a case that UANI defamed his client. It is not clear how “state secrets could be relevant” to UANI’s 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?” Lowell asked.

He also asked, “Are state secrets relevant to an affirmative defense and, if so, are defendants even asserting that defense?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 requested a public declaration so that these questions would potentially be answered.

“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,” Lowell stated.

The Justice Department has decided it will not publicly help Restis understand how a case against an anti-Iran advocacy group for defamation could possibly involve “state secrets” that, if disclosed, would put the country’s national security at risk — not what the “state secrets” are but the mere fact that this information would even need to be referenced in the course of a trial.

Lowell informed the judge that in previous similar cases, where he had represented clients, the government had been able to submit public declarations. The government claims that this does not establish a “rule of law” nor require a public declaration in this case.

It also does not matter that Lowell has a security clearance and could access the classified information to work out some kind of solution with the government so Restis could still bring his case against UANI.

“Private parties and their counsel in civil cases involving the state secrets privilege have no right – due process or otherwise – to have access to privileged national security information presented to the court ex parte [one party] and in
camera [in judge’s chambers],” Byars declares.

The letter to judge adds greater weight to the question: Why is the Justice Department protecting this group? Was it or is it some kind of front group for US foreign policy objectives? Has it been privately briefed on secret information related to Iran in order to help it find businesses to target and shame?

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. It’s 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 the above people have past histories and ties in government. They each had access to classified information. If any of them have inappropriately handled such information, they should face prosecution and not be protected by the Justice Department.

Finally, the Justice Department emphasizes United States v. Reynolds, where the US 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.

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.”

Indeed, in another “state secrets” case, where the government is trying to have a case dismissed involving a US citizen who says he was tortured in Kuwait, the judge has stated, “[The] government’s assertion of the state secrets privilege in certain cases has been less than reassuring.” He cited Reynolds and noted it “became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets.”

So, who or what is the Justice Department protecting? And, at what cost to Americans’ right to bring cases in courts? Because if the government is successful it would mark a further expansion of the “state secrets” doctrine for the benefit of government and elites with powerful influence, not citizens. It would further diminish the right of equal protection under the law.

Creative Commons-Licensed Photo by Timothy Valentine on Flickr 

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Kevin Gosztola

Kevin Gosztola

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