The government has occasionally invoked the state secrets privilege in a legal proceeding without ever publicly revealing that it had done so, government attorneys disclosed in a pending state secrets case this week.

Last September, observers were surprised when the government intervened and asserted the state secrets privilege in a private defamation lawsuit brought by Greek businessman Victor Restis against the anti-Iran advocacy organization United Against Nuclear Iran. (“Private Lawsuit Jeopardizes State Secrets, US Says,” Secrecy News, September 14). When the government further refused to specify the nature of the information it said was privileged, or even which agency was invoking the privilege, critics called the move extraordinary and unprecedented.

But it was not unprecedented, government attorneys replied this week. To the contrary, the current case is actually within the “historical spectrum” of state secrets cases, and there are some that have been even more secretive.

“There […] have been cases, like this one, where specific details concerning the Government’s interest in a private lawsuit could not be described on the public record,” attorneys told the court in their November 19 reply.

They cited, for example, a 1992 case known as Terex Corporation v. Richard Fuisz and Seymour Hersh, in which the plaintiff had accused the defendants of defamation. The government asserted the state secrets privilege in that case, but without identifying the source of the assertion, and the case was dismissed.

“There, as here, the Government submitted its supporting declaration ex parte and in camera and did not publicly disclose which agency asserted the privilege.”

“The Government does not fault plaintiffs and amici for not being aware of the Terex case, as there appear to be no public decisions from that matter on Westlaw,” attorneys added. The case was discussed in a declaration by Anthony J. Coppolino, attached to the government response.

But the “spectrum” of secrecy has sometimes extended even beyond that, the attorneys wrote:

“Although extremely rare, there also have been matters in which the Government’s state secrets assertion has been entirely under seal. By definition, of course, sealed matters cannot be found on the public record.”

Judging by that standard of total invisibility, the government has been substantially forthcoming in the present case, the government attorneys said, particularly since it admits that it is invoking the state secrets privilege.

“In publicly acknowledging that it is asserting the state secrets privilege in this case and submitting a public brief in support of its assertion, the Government has disclosed more information about its state secrets privilege assertion here than has occurred in prior sealed matters,” they wrote.

It follows that the plaintiff in this case is not entitled to any further information about the assertion of the state secrets privilege, they insisted, and no further public disclosure should be required by the court.

“The Government cannot publicly reveal the scope or nature of the privileged information at issue here. Whatever impact exclusion of this information would have on the parties’ ability to establish their claims or valid defenses, the Government believes that further proceedings would inevitably risk the disclosure of state secrets if this case were to proceed. In general terms, this risk turns on the nature of the question presented in this action and the proof required by the parties to establish or refute the claim, as well as on the risks associated with the normal give and take of adversarial questioning and probing.”

“But in no event should the Court disclose or direct disclosure of additional information without providing an opportunity for the Government to engage further with the Court or, if necessary, to seek further review,” they wrote.

* * *

In a separate filing, the defendant United Against Nuclear Iran (UANI) said that all of its allegedly defamatory statements against Victor Restis were true and correct, and that the plaintiff was entitled to no relief at all, whether or not the case went forward.

But in presenting its argument, the UANI filing listed over a dozen allegations against Restis that it said could be established on the basis of existing documents and testimony that were not subject to the state secrets privilege.

And the number and specificity of those allegations implicitly suggested that it might be possible to litigate the case on the basis of non-privileged information after all.

* * *

When the court in the lawsuit Gulet Mohamed v. Eric Holder rejected a government motion to dismiss that case on state secrets grounds on October 30, I supposed incorrectly that it might be the first time such a motion for dismissal had been denied in a state secrets case (Secrecy News, October 31).

In fact there have been quite a few such denials, many of which were itemized in an exhibit filed by the government this week in the Restis case.

However, denial of a motion for dismissal does not entail denial of the privilege or release of the information that is said to be privileged.

Government attorneys told the Restis court that there was not “a single case in which a state secrets assertion actually made by the Government in civil litigation was finally rejected by courts reviewing the matter, and in which the privileged information at issue was ultimately ordered to be disclosed.”

Yesterday, Judge Anthony J. Trenga denied a government motion for a stay of proceedings in the Gulet Mohamed v. Holder case, and said that the case challenging the constitutionality of the “no fly” list would go forward while the government revises its watchlisting procedures.