US District Court of the Southern District of New York

A federal judge made an extremely rare and unusual decision and dismissed a defamation lawsuit in between two private parties because the government invoked the state secrets privilege. He denied lawyers for the plaintiff in the case access to reasons why the government invoked the privilege.

Greek businessman and ship owner Victor Restis alleged 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, despite the fact that there did not appear to be any particular government activity implicated, the Justice Department took the extraordinary step in September of requesting the judge hearing the case in the US District Court of the Southern District of New York dismiss the private lawsuit.

Judge Edgardo Ramos reviewed a “classified declaration” submitted by the United States government and found the state secrets privilege was “properly invoked.” [PDF]

Ramos contended the government had “asserted” the privilege only after “careful personal consideration of the matter.” The “classified declaration” he reviewed described in “great detail the information subject to the state secrets privilege and explains how disclosure of that information could reasonably result in harm to national security.” He was “satisfied that there is a reasonable danger that disclosure of the facts underlying the government assertion would in fact jeopardize national security.”

He also did not accept that the case was as unique as Restis’ attorneys and the American Civil Liberties Union, which submitted an amicus brief, argued.

In Terex Corp, et al v. Fuisz et al, which was a defamation action involving two private parties involving “statements accusing the plaintiff corporation of illegally supplying military equipment to Iraq during the Persian Gulf War,” the government moved for a “protective order” after a defendant “refused to “answer several questions during a  deposition which he believed required the disclosure of classified national security information. In Terex, as here, the Government submitted its supporting declaration ex parte and in camera and did not publicly disclose which agency asserted the privilege.”

But a “protective order” is vastly different from invoking the state secrets privilege, which effectively prevents a person from being able to have due process in court because secrets are more important than his or her alleged claims.

“Plaintiffs distinguish these cases on the grounds that (i) the private parties there were closely related to the government either as employees or contractors, and (ii) the presence of classified information was obvious from the claims alleged. Such distinctions, while accurate, neither compel the disclosure of additional information relating to the assertion of privilege nor save the instant action from dismissal,” Ramos also argued.

He added, “While it may be that this case is rare because it involves purely private litigants, it is the nature of the information at issue that guides the state secrets analysis, not the nature or status of the litigants.”

ACLU attorney Dror Ladin reacted, “We’re disappointed and deeply troubled by this decision, which accepts an extreme government argument for secrecy. In past cases involving sensitive subject matters, such as torture and surveillance, the public had at least some basis for understanding the government’s interest in trying to keep a case out of court.

“The blanket secrecy here leaves the public completely in the dark not just about the government’s reasons for blocking this case, but also what the government’s interest in the case even is.”

Abbe Lowell, lawyer for Restis, had posed the following questions. “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?”

He wondered if the state secrets were relevant to all of Restis’ 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 maintained. “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.”

The court clearly thought differently. It decided to abandon the “adversarial process,” conduct a review in secret and dismiss a case.

Finally, Ramos never bothered to address the issue of why UANI would have state secrets 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. And there is no expression of concern in Ramos’ order that a private organization possesses such sensitive information that a person can not bring defamation claims in court. The judge practically granted UANI a license to graymail the US government.

Creative Commons Licensed Photo by Michael J D’Amato

Kevin Gosztola

Kevin Gosztola

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

1 Comment