Releasing secret presidential letters that promise not to officially recognize Israel’s nuclear weapons program or pressure Israel to sign the Treaty on the Non-Proliferation of Nuclear Weapons would harm US national security. So claimed John P. Fitzpatrick, Senior Director of the Information Security Management Directorate at the National Security Council in a December 18, 2018 affidavit submitted to DC federal court.

The affidavit supports a motion by the National Archives and Records Administration to dismiss a Freedom of Information Act lawsuit seeking two of four letters signed by incoming US presidents – under intense pressure by Israel’s government – to maintain a Nixon-era policy of "strategic ambiguity" towards Israel’s nuclear weapons program.

Staff writer for The New Yorker Adam Entous revealed on June 18 that starting with Bill Clinton four sitting US presidents all signed secret letters agreeing to never publicly discuss Israel’s undeclared nuclear arsenal. According to Entous, President Trump’s aides felt “blindsided” and angered by Israeli ambassador Ron Dermer’s urgent demand to sign a fourth letter. Only a small number of “senior American officials” in the previous three administrations even knew about the existence of such letters, according to Entous.

The NSC and NARA are attempting to dismiss a lawsuit seeking release of the letters by claiming the very fact of the existence (or nonexistence) of such letters would inherently be classified – and that therefore no search for responsive documents need be performed. Since FOIA courts readily defer to agency affidavits asserting irreparable harm to national security – provided such affidavits are specific enough – the NSC also provided a written justification.

Fitzgerald claimed that confirming or denying the existence of the letters could result in "sowing doubt about the US commitment to the Nonproliferation Treaty…eliminating strategic ambiguity…revealing information shared with an expectation of confidentiality; undermining US government policy limiting the potential for an arms race in a particular region…suggesting differential treatment; and revealing the relationship (or absence of such a relationship) with foreign intelligence agencies."

The National Security Council attempted to preempt longstanding plaintiff arguments – made in other related court cases – that the true function of the secret letters and other aspects of "strategic ambiguity" is to violate the Arms Export Control Act and NPT in order to deliver the lion’s share of the US foreign aid budget to Israel – as Israel’s U.S. lobby demands. The NPT demands that signatories – such as the US – safeguard nuclear weapons material and technology from illicit use, particularly by non-signatories such as Israel. AECA requires the president to follow formal protocols for congressional notification and waivers when delivering US foreign aid to nuclear weapons states that are not signatories to the NPT. Presidents have routinely flouted the treaty and law. But Fitzgerald specifically certified to the court that "the information was not classified to conceal violations of law, inefficiency or administrative error" all of which are prohibited rationales for government secrecy classification.

However, citing a dubious precedent, the Department of Justice, counsel to NARA in the court battle, argued that even if the letters are being kept secret to cover up wrongdoing, such secrecy is allowed. "There is no legal support for the conclusion that illegal activities cannot produce classified documents…history teaches the opposite." The cited precedent was the withholding of illegal FBI surveillance tapes of Dr. Martin Luther King from assassination researchers in 1980. In that case the DOJ managed to win a court order sealing the records for an additional fifty years since they might "compromise legitimate secrecy needs."

Perhaps realizing the court might not find such an argument very compelling, the DOJ advised that, "Should the Court determine that it must assess the scope of the Arms Export Control Act or the United States’ treaty obligations and whether the alleged letter amounts to a violation of those obligations, the Defendant respectfully requests the opportunity to submit supplemental briefing on that point, after consultation with other agencies, including the Department of State."

Since the nuclear protocols on US foreign aid now part of the AECA went into effect, the US is known to have provided at least $100 billion in foreign aid to Israel. Public release of the actual total figure – which including secret intelligence aid would be much higher – is the aim of a related lawsuit similarly arguing that such figures cannot be kept secret, since the aid inherently violates US law and treaty obligations. A third related lawsuit aims to disclose a secret federal gag order prohibiting informed discussions by government agency employees and contractors or information releases pertaining to Israel’s nuclear weapons program.

Grant F. Smith is research director of the Institute for Research: Middle Eastern Policy and the plaintiff in civil action no. 18-CV-02048 seeking presidential letters to Israel promising not to comply with the NPT and AECA. He is the author of the 2016 book, Big Israel: How Israel’s Lobby Moves America now available as an audiobook.