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Judge: Speed release of Clinton-era BAE documents

A federal judge is ordering the State Department to speed release of documents related to a deal the agency cut with defense contractor BAE Systems while Hillary Clinton was secretary of state.

State's lawyers recently asked for an extension until October 17 to complete the process of reviewing and disclosing records about a consent decree BAE reached in 2011 settling civil claims over violations of U.S. arms export control laws and regulations. The $69 million civil settlement followed a criminal guilty plea from the company the preceding year, resulting in a fine of $400 million.

Some critics dismissed the consent decree as a sweetheart deal because it maintained BAE's ability to continue to receive U.S. government contracts and export licenses, although the licenses for some subsidiaries were switched to a presumption of denial that the companies could try to overcome.

The Associated Press requested the files on BAE in August 2013 and filed suit in March 2015 after receiving only three documents responsive to its request.

U.S. District Court Judge Richard Leon said at a hearing Tuesday that the mid-October deadline proposed by State was a non-starter because of the relevance of the records to the upcoming presidential election, given Clinton's role as the presumptive Democratic nominee.

"This case has been dragging on for a long time ... We're now reaching a point of mounting frustration that this is a project where State is running out the clock," Leon said. "There's no way I'm ever going to grant you an extension to mid-October because that would effectively run out the clock."

Justice Department attorney Carol Federighi said there was no foot-dragging on State's part, but that the request has been difficult to manage due to the need to consult with the Defense Department and Commerce Department and to send many of the records to BAE for its review.

"We share the plaintiff's concern about how long this process is taking," Federighi said.

State has estimated there are 13,000 pages of records responsive to the request. Federighi said State has made "final determinations" on 8200 pages or about 60 percent, although some pages were withheld in full and many others were determined to be duplicates. Only about 1250 pages have actually been turned over to AP. The court-imposed deadline to finish disclosure was initially April 4 and was later extended to June 13.

A lawyer for the AP, Jay Ward Brown, said the news agency has been diligent in pursuing the information.

"The AP has been trying to report this story for over three years now," Brown said. "We submitted this request well in advance of the election ... AP is still without a final answer, much less copies, of about half of the originally estimated documents."

Leon said he found it odd that BAE, whom he termed "the transgressors," got to review the documents prior to their release.

However, Federighi said an executive order dating back to the Reagan era requires State to advise companies of any information they submitted that may be released and give them a reasonable time to raise any objections.

Leon eventually proposed that State prioritize the processing of documents that show who approved the consent decree with BAE and whether Clinton was involved in that process.

"I'm trying to find a way to take some of the steam out of the kettle," said the judge, a George W. Bush appointee. "It should be very easy to determine who the final decision maker was."

Federighi seemed reluctant to embark on an inquiry into who did what, but she said she could "pull those action memos" laying out the key approvals and have those processed for disclosure in the next couple of weeks.

At one point, Leon asked Brown what kind of sanction could be impose on State or other agencies for moving too slowly.

"Fine? ... Incarceration? What have you got up your sleeve here?" Leon asked. "I can't send the marshals out to get the documents. They probably couldn't find them."

"At some point the line has to be drawn, there has to be a consequence for not meeting the deadline," Brown said. One possibility, he said, would be to order State to pay AP's attorneys' fees.

"That's a very measured response," Leon replied, adding that he thinks the other agencies working on the case "need to feel the heat."

Despite the delays in the case, Leon said he was intent not only on getting all the releasable documents out before the election, but litigating out the question of whether State's redactions and withholdings were legally justified. He said he wants the document disclosure completed by early September, so he can get legal briefs on the exemption claims and rule on them by mid-October.

Given the glacial pace of many of the roughly 100 FOIA suits pending against State in the wake of the Clinton email flap, Leon's schedule for resolving the case seems wildly ambitious.

Indeed, so ambitious that near the outset of the hearing the AP's attorney dismissed the possibility altogether.

"That's obviously not going to happen," he said.