March 5, 2012
In a rare demonstration of judicial independence from the national security state, a federal judge last Wednesday ordered the federal government to release a document it says is classified. The case is a Freedom of Information Act (FOIA) suit filed by the Center for International Environmental Law (CIEL) in 2001 against the Office of the U.S. Trade Representative (USTR). CIEL requested USTR turn over a one-page position paper concerning a U.S. negotiating position in negotiations to create a free-trade area among 34 nations in the western hemisphere that eventually went nowhere. USTR refused to release the document, which was classified because the countries in the negotiation had agreed to keep their records secret until the end of 2013. To violate that agreement would, according to USTR, undermine trust of the U.S. and thus could reasonably be expected to cause harm to U.S. foreign relations.
But U.S. District Court Judge Richard W. Roberts, a Bill Clinton appointee, rejected the USTR’s argument, especially since the document was a U.S. Government record, not foreign government information that had been provided to the U.S. in confidence. Roberts concluded that “USTR has not provided a plausible or logical explanation for why disclosure of the document would harm the United States’ foreign relations.” The Obama administration is likely to appeal this ruling.
Although federal courts have the power under FOIA to question government decisions not to disclose classified documents, judges have been reluctant to use this power, lest they be accused of meddling in matters of national security. The most notable recent case was Weatherhead v. U.S., in which the Ninth Circuit Court of Appeals in California ordered the government to release a letter the British government provided to the U.S. in connection with an alleged murder plot. The British dropped their secrecy claim before the Supreme Court heard the case, but the High Court agreed to a government motion to vacate the case and order the Ninth Circuit to effectively wipe its earlier ruling from the books.
This is not Judge Roberts’ first case involving government secrecy. In July 2005, Roberts issued an order prohibiting the CIA from destroying evidence of its use of torture during interrogations, yet CIA Director Michael V. Hayden acknowledged in December 2007 that the CIA had subsequently destroyed hundreds of hours of such tapes anyway, leading Roberts to order the White House to explain the destruction. In November 2010, the Obama Justic Departmnet closed the case without filing criminal charges.