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Courts can review CIA classification decisions, allow review by attorneys

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  1. Prior Restraint

    NMU         WASHINGTON, D.C.         Prior Restraints         Jun 13, 2002    

Courts can review CIA classification decisions, allow review by attorneys

  • In denying the CIA’s arguments against judicial review of agency classification decisions, a federal judge granted an attorney access to his client’s manuscript about Chinese nuclear weapons plants.

Pending a background check, an attorney will be granted access to information the government has classified as confidential in order to help assist his client, a retired government contractor, challenge the government’s classification of information in his manuscript about Chinese nuclear weapons and testing facilities, a federal judge ruled June 7.

In a 106-page decision, District Court Judge Emmet Sullivan in Washington, D.C., wrote: “This court will not allow the government to cloak its violations of the plaintiff’s First Amendment rights in a blanket of national security.”

Sullivan also rejected the government’s arguments that the court lacks authority to review executive branch decisions on classifying information.

“The implications of the arguments put forth by the government in this case are stunning” Sullivan wrote. If that was the law, he noted, the Freedom of Information Act would be unconstitutional and the Pentagon Papers case (New York Times Co. v. United States) was wrongly decided.

Danny Stillman, a retired employee at Los Alamos National Laboratory in New Mexico, wrote “Inside China’s Nuclear Weapons,” an account of his nine trips to China to visit nuclear weapons plants and test sites. As part of his employment at Los Alamos, Stillman was required to sign a nondisclosure agreement and submit any written manuscript to the government for pre-publication review to determine if it contains any classified information. Stillman filed suit in June 2001, after officials told him none of the information in the book could be released.

Mark Zaid, Stillman’s attorney, was also denied access to the information because he did not have the requisite “need to know” and was “not performing or aiding in a legitimate government function.” Sullivan ordered the government to allow Zaid access after it completes a background check on him.

Sullivan recognized the importance of national security interests, but said the government’s blanket restriction on all the material in Stillman’s manuscript was not narrowly tailored to serve a compelling government interest. The government did not prove any specific harm or threat to national security would result if the classified information was released to Stillman’s counsel, the judge ruled.

(Stillman v. Department of Defense; Mark Zaid, Washington D.C.) JLW

© 2002 The Reporters Committee for Freedom of the Press

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