Tales from the So-Called “Justice” System — Ever Dwindling Transparency

Screen Shot 2015-01-04 at 9.00.46 PMAccording to this Salt Lake Tribune Article, when the federal government may have some exposure in a case, it can simply demand that the case be dismissed — without explanation.  So much for governmental transparency and accountability.

The Story of a Court Case So Secret the Government Says it Can’t Go On — by Noah Feldman, Bloomberg View

Imagine that someone has wronged you, and you sue them. Then the government magically appears in court and asks that your suit be dismissed because, for reasons it won’t tell you, state secrets might be dredged up in the course of the litigation. You have no idea what they’re talking about. But after secret discussions with the judge from which both you and the defendant are excluded, the court dismisses your suit.

This Kafkaesque scenario couldn’t happen in the U.S., right? Not until this week, it couldn’t. That’s when a federal judge in the Southern District of New York did exactly that, dismissing a defamation suit by Greek shipping magnate Victor Restis against a shady advocacy group called United Against Nuclear Iran.

This is the first time a U.S. court has dismissed a lawsuit on the basis of state secrets when the case didn’t involve either the government or a defense contractor deeply enmeshed with classified government contracts. It’s also a marvelous example of how secrecy fundamentally distorts the legal process and subverts the rule of law.

When I write about a case, I usually begin by describing the facts. Here the facts are so secret I can barely say anything. United Against was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran. Its board includes former directors of foreign intelligence services including the U.K.’s MI-6, Germany’s BND — and Israel’s Mossad.

One of the strategies pursued by United Against is a campaign to “name and shame” entities that trade with Iran. The organization named Restis, who in turn sued United Against for falsely claiming his companies were “frontmen for the illicit activities of the Iranian regime.”

Screen Shot 2015-03-26 at 8.49.36 AMThe Department of Justice intervened in September, asserting the state secrets privilege. That so-called privilege doesn’t come from the Constitution or from statute. It’s an unwritten judicial rule that allows the government to block discovery of information through ordinary litigation “when disclosure would be inimical to national security,” as the district court described it.

What followed would be comical if it weren’t so serious. The government asserted privilege “by submitting classified declaration by the head of the department which has control over the matter.” But even the identity of that official is itself a secret that the court declined to reveal. The government said that “disclosing even the identity of the agency involved creates an unwarranted risk of exposing the information it seeks to protect.”

The court accepted that argument. In addition to reading the government submission, the court held two meetings with government lawyers, from which plaintiffs and defendants were excluded. The court then decided that, because it owed “utmost deference” to the executive’s concern about the effects of disclosure on national security, it would shut down discovery in the case.

So far, so bad. By denying the attorneys the opportunity to know anything at all about what material was supposed to be suppressed, and even what government agency was seeking its suppression, the judicial branch made itself into a wing of the executive. Judicial independence under Article III of the Constitution is out the window if the court exercises “utmost deference” and doesn’t allow any adversarial process. Inevitably, the government will get what it wants.

There was worse to come. Having barred access to information, the court went on to dismiss the case altogether. Even if Restis could prove his case without the excluded evidence, the court said, it was “convinced that further litigation of this action would impose an unjustifiable risk of disclosing state secrets.” That is, even if the court were to block discovery of any actual state secret, the mere fact of the lawsuit would have a tendency to endanger national security — even if the trial took place entirely in secret. The court thus came perilously close to saying that the case should be dismissed because it might be embarrassing to the government.

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The trial judge, Edgardo Ramos, admitted that the outcome was “harsh.” As he put it, “plaintiffs not only do not get their day in court, but cannot be told why.” This formulation captures exactly why the case violates the rule of law. Dismissing a lawsuit between private parties without giving a reason is the very opposite of the judicial function, which relies fundamentally on reason-giving. Where no reasons are given, we aren’t in the realm of legal decision-making. We’re in the universe of absolutism or autocracy.

What makes matters worse is the lingering possibility, indeed probability, that what the government fears is not a true threat to national security, but a severe case of embarrassment. It’s difficult to escape the conclusion that United Against is a front organization for U.S. intelligence, possibly acting in conjunction with other foreign intelligence services. The allegation that Restis was doing business in Iran seems almost certain to have come from one of these intelligence services. Would acknowledging cooperation between, say, the Central Intelligence Agency and Mossad regarding Iran really upend national security? True, it’s a delicate time in the Iran nuclear negotiations. But no one, least of all the Iranians, doubts that U.S. and Israeli intelligence collaborate.

When only the government gets to speak, and does all its talking in secret, there’s no check over its actions. Who is a district judge to stand up to the anonymous director of some anonymous intelligence agency? The result is not just bad for the rule of law. It’s an embarrassment to the entire judiciary. Here’s hoping Restis appeals, and that the appellate court, and maybe even the Supreme Court, has a chance to revisit the issue — and maybe save the dignity of the judiciary and the majesty of the rule of law.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”

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