Without hearing, high court overturns decision on openness of British letter

From the Winter 2000 issue of The News Media & The Law, page 4.

At the government's urging, and without a hearing, the U.S. Supreme Court in December overturned a federal appeals court decision that release of an "innocuous" letter from the British Home Office could not damage foreign policy or national security. The order, and the government's pursuit of it, challenge the "presumption of openness" that President Clinton's executive order on classification promised in 1995.

The executive order requires classifiers to explain why information is classified and to identify the damage disclosure would cause to national security before classifying information. In classifying a brief letter from the British Home Office, the government pointed to no damage, but instead insisted that communications from foreign governments must be withheld at their request.

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Shortly before oral argument was scheduled before the U.S. Supreme Court, Spokane, Wash., attorney Leslie Weatherhead's Freedom of Information Act request became moot when the government realized, from reading his pleadings, that British officials themselves had long ago given him the gist of the short, classified document he had requested.

The government asked the high court to find the case moot and also to vacate an opinion of the U.S. Court of Appeals in San Francisco (9th Cir.) that the requested document should not have been classified in the first place. The government claimed that constitutional separation of powers allows the executive branch to make these decisions.

The government had asked the Supreme Court to reverse the appeals court's order that it release the letter Weatherhead sought, saying the courts should give "utmost deference" to a government decision to classify a record.

Weatherhead and several public interest organizations told the high court that the federal appellate decision was correct and urged the justices to leave it alone. They argued the history and the language of the FOI Act make clear that the exemptions are narrow and that the exemption for classified records is not blanket authority for agencies to withhold anything they like.

President Clinton's Executive Order on Classification was intended to overcome the climate of too much classification, they said. It sets strict standards for classifying records and requires the government to justify any classification stamp. That order makes clear that a foreign government's expectation of confidentiality is not sufficient to justify classification, Weatherhead wrote in briefs submitted to the Court.

The Reporters Committee for Freedom of the Press and the Society of Professional Journalists in a friend-of-the-court brief told the justices that FOI Act exemptions are to be construed narrowly and that the government's desire for "utmost deference" ignores both the plain language of the FOI Act and the presidential order. Exemption 1 gives the president leeway in deciding what to classify, they said, but it requires him to issue standards governing classification and to stick to them.

The National Security Archive, a public interest group that collects unclassified national security information, said the government cannot use the Constitution as a "tool to twist the meaning" of the FOI Act. Congress has always had an interest in the management and disclosure of national security information and has never acknowledged "exclusive executive authority" to determine what will be released.

The Federation of American Scientists and the ACLU joined that brief. The National Association of Criminal Defense Lawyers also filed a brief on Weatherhead's behalf.

Weatherhead had sought the classified letter relating to his client, a British national, with no way of knowing what little substance it contained.

After obtaining British permission to do so, the U.S. Department of State disclosed the document, making moot its challenge to the appeals court ruling in favor of Weatherhead.

However, the government went further, asking the high court to set aside the appellate decision that the letter never should have been classified. It said the court's determination that disclosure could not possibly have harmed foreign policy or national security was wrong because it would require the United States to reject the wishes of a foreign power.

The high court complied with the government's request in a brief order without an opinion and with only Justice Antonin Scalia dissenting. It was the second consecutive Freedom of Information Act appellate decision favorable to requesters set aside by the high court without a hearing. (See Bibles v. Oregon Natural Desert Ass'n; NM&L, Summer 1997)

Weatherhead in November 1994 had filed an FOI Act request with the Departments of Justice and State for a letter from the British Home Office concerning the extradition of his client Sally-Ann Croft. She and British national Susan Hagan faced prosecution on charges that they had conspired to murder the attorney general of Oregon, a murder that did not occur.

Extradition of the two had been controversial in the British House of Lords where members voiced concerns that the women, who had been members of the Bhagwan Shree Rajneesh commune in central Oregon, might not receive a fair trial in a climate of strong local prejudice against that disbanded spiritual community. However, the British government ultimately granted extradition on the conspiracy charges.

Weatherhead initially believed that British concerns outlined in the letter would help him obtain a change of venue for his client.

His interests were less immediate when his case arrived before the high court. By the time the government released the letter Weatherhead sought, Croft had been convicted, served time in a northern California prison, and been released. According to Weatherhead, she had made a new life for herself in the Welsh countryside before the government made the letter available.

The released document, written in 1994 from the British Home Office to the Department of Justice, delineated concerns about the extradition.

The four-paragraph letter explained that Hagan, Croft, and others, including prominent members of both Houses of Parliament, had expressed fears that a fair trial could not occur in Oregon because of "the age of the alleged offence, the nature of the evidence against them (obtained, so it appears, from plea bargains), and alleged continuing prejudice against members or former members of the Rajneesh community."

It stated that the Home Secretary had refused "to seek an undertaking from the United States Government that the place of trial be moved to another, neutral, state" because the place of trial "is, of course, for the US authorities to decide," but that he had agreed to pass along these concerns.

It stated that although judgment had gone strongly against Hagan and Croft, "we would wish to stress strongly the Home Secretary's concern that questions of local prejudice are examined most carefully."

It stated also that the case had "attracted an unprecedented degree of Parliamentary, public and media attention" in Britain and that concern both inside and outside Parliament would likely continue. Parliamentary debates about it would be likely, the letter stated, possibly resulting in votes condemning the Home Secretary's actions. The letter asked that the Home Office be kept in "very close touch" with developments.

When Weatherhead first filed his request, the U.S. government contacted the British Home Office and was told that the British government was "unable to agree" to release because "the normal line in cases like this is that all correspondence between Governments is confidential unless papers have been formally requisitioned by the defence."

Because of the British objections, the State Department insisted that disclosure would harm national security. From its first denial through its arguments before each court, the government never asserted that the letter should have been classified because of its content. Classification must follow as a matter of protocol with foreign governments, it said, and the courts should defer to the expertise of State Department officials in these matters.

Assistant Secretary of State Patrick Kennedy wrote one of the affidavits for the record, stating that foreign governments traditionally expect their communications with the United States to be held in confidence. Before the Supreme Court, Strobe Talbott, as acting Secretary of State, added a similar affidavit. The State Department knows best what should be classified, and the courts should defer to its judgment, they contended.

In its ruling, the appeals panel said the current executive order on classification requires that the government describe the damage to national security likely to occur from disclosure before it can classify a document. A "general understanding" between governments would not be enough to justify classification, it said. (See NM&L, Fall 1998)

The letter, which the appellate judges reviewed in chambers, was "innocuous" and "incapable" of harming national defense or foreign relations, the court wrote. However, a dissenting judge wrote that the court should defer to the expertise of government officials in matters of classification.

Exemption 1 to the federal FOI Act allows the government to classify documents according to an executive order. President Clinton issued the current order in April 1995. That latest order sought to reduce automatic classification and to make it more burdensome for the government to classify records than to forego classification. (See NM&L, Spring 1995)

A federal District Court judge in March 1996 first rejected the government's position that the letter Weatherhead sought was exempt as classified. But at the government's urging, he issued a new opinion later that year. In the second decision, he wrote, after reviewing the letter in chambers, that even though the letter did not meet the standards for classification under the executive order, it could not be released. And if you read it, he said, you would know why. (Weatherhead v. Department of Justice and Department of State)