Update March 23, 2015: The court issued an opinion granting the motion to dismiss on the basis of the government's assertion of the state secrets privilege.
Last year, Greek businessman Victor Restis filed a defamation lawsuit against United Against Nuclear Iran (UANI), an advocacy group which, as part of a “name and shame” campaign, had accused his shipping company of doing business with Iran. Restis denies the allegations, while UANI sticks by them.
Ordinarily, each side would have its day in court, but now the U.S. government wants to wipe out the lawsuit altogether, invoking the state secrets privilege. In response, EFF has joined in an amicus brief by the American Civil Liberties Union in Restis v. UANI to ensure that government secrecy does not improperly get in the way of a fair resolution in this unusual case.
In cases that touch on national security, such as EFF’s challenges to NSA wiretapping, the government often invokes the privilege to try to withhold evidence that it says must remain secret. But Restis is a dispute between private parties, not a suit against the government, so it’s not clear where the risk of harm to national security comes from. Ordinarily, the government would at least file a public declaration by the head of an agency giving a general explanation of the need for secrecy. But in Restis, it isn’t giving the slightest indication. In fact, it says [.pdf] that even “the identity of the concerned federal agency. . . cannot be disclosed without revealing classified and privileged matters.”
As far as we can tell, even by the opaque standards of state secrets privilege cases, the government’s actions here are unprecedented: It’s asking the court to dismiss the case without a shred of public information about why the privilege should apply. Any harm to the plaintiff, who may have a legitimate case—not to mention the public’s interest in a transparent and fair outcome—is a necessary but unfortunate casualty of protecting the government’s interest in secrecy.
As our amicus brief explains, the state secrets privilege is a legitimate but narrow legal tool to protect critical national security information held by the government. When it is properly invoked, the privilege removes secret evidence held by the government from the proceedings, and the case usually continues without it. Since 9/11, however, the government has increasingly relied on the privilege to avoid a determination of the legality of its actions in a variety of national security cases. In 2009, the Obama Administration issued new guidelines intended to limit assertions of the privilege to cases where disclosure would “significantly harm” national security, but these guidelines fail to respect the role of the courts in evaluating such claims.
Indeed, the government says it has followed procedure here, but it has provided no information to lawyers in the case who have security clearances, nor any unclassified public versions of its filings. We hope the court will require the government to make a better showing before it accepts the government’s claim of privilege.