Tags: security | clearance | judge

Judge's Ruling a Bad Omen for National Security Legislation

By Steve Emerson   |   Wednesday, 23 Sep 2009 06:11 PM

A recent decision by U.S. District Court Judge Royce Lamberth in Horn v. Huddle has revived a question of national security law and policy long thought to be settled: Is control over access to classified information entrusted to the sole discretion of the executive branch, and if so, can the judiciary review that determination?

The executive branch plays a critical role in protecting the nation's security, and to that end, it enjoys broad discretion to control access to sensitive military and national security information. Under the executive order controlling access to classified materials, an individual must satisfy three prongs: (a) they must receive a security clearance; (b) sign a nondisclosure agreement; and (c) have a "need to know" the classified information.

Each of these elements is handled by the agency in control of the classified material, and courts have historically been reticent to second-guess any determination made by the executive branch. For example, challenges related to the denial of security clearances or the legality of nondisclosure agreements are routinely denied on the grounds that they are political questions entrusted to the sole discretion of the executive. As the Supreme Court has explained in Department of the Navy v. Egan:

"The authority to classify and control access to such information is constitutionally vested in the president as head of the executive branch and as commander in chief, and this authority should not be intruded upon by the courts."

“Huddle” arose over allegations that an employee of the State Department illegally wiretapped an employee of the DEA. All parties to the case were involved in sensitive activities in Burma at the time of the alleged wiretapping, and as a result, the case was expected to implicate classified national security information. Although the plaintiff's attorneys were familiar with the classified material, defense counsel would have required access in order to effectively defend the lawsuit.

In order to prevent the disclosure of the classified material in question, the DOJ intervened and successfully asserted the state secrets privilege, at which point the government went on to claim that portions of the non-privileged materials were classified and therefore unavailable to defense counsel. Consequently, the court was forced to determine how, if at all, it could grant cleared defense counsel access to classified material over the government's objection.

In ruling against the government — and ignoring long standing precedent — Lamberth held that counsel in the case indeed had a "need to know" the classified material in question, stating: "the deference generally granted to the executive branch in matters of classification, and national security must yield when the executive attempts to exert control over the courtroom."

The decision by the District Court will likely have a profound impact on future national security cases, as is already proving evident in ongoing litigation in Oregon involving the al Haramain Islamic Foundation. The plaintiff in that case, al Haramain, a Specially Designated Global Terrorist (SDGT), was seeking injunctive relief on the grounds that classified information used to designate the organization was unconstitutionally gathered. Although the litigation has moved past the relevant discovery proceedings, during an earlier phase of the case, the plaintiff sought access to the classified material that was used in their designation.

Refusing to disclose the information, the government explained that although the plaintiffs' counsel had been granted security clearances, they did not have the requisite "need to know," and that determination was not subject to judicial review — the same argument made by the government in “Huddle”. Although the court in al Haramain side-stepped the ultimate question, the case is demonstrative of the effect that Lamberth's decision in “Huddle” could have on future litigation. Based on “Huddle”, future defendants in national security cases may be able to force disclosure of classified material over the government's objection. Hopefully the Court of Appeals for the D.C. Circuit will be cognizant of this looming inevitability and the institutional competencies of each branch of government when “Huddle” comes up for appellate review.

Read the full text of Horn v. Huddle here.

Follow IPT coverage of the al Haramain litigation here.

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