The decision in the current case Restis v. United Against Nuclear Iran could potentially give the government even more power in the state secrets privilege than before. According to Sudha Setty of Just Security, the United States government intervened in the civil suit on the grounds that proceeding would cause the declassification of documents pertaining to national security. This is the first case of its kind, Setty asserts, because not only is the government intervening in a private suit (like Mohamed v. Jeppesen), but UANI is not associated with any government entity. Jeppesen was contracted by the government and therefore it is plausible for them to use the state secrets privilege in a suit involving that company. The controversy here is obvious: how did a supposedly private company obtain documents that contain state secrets and how does the government know? As Lauren Bateman of Lawfare points out, government intelligence agencies cannot attempt to sway public opinion. So how is it possible that a private group that clearly has a political motivation can be protected by this government intervention?
On Wednesday, October 8th, Judge Ramos of the Southern District Court of New York heard arguments from the government and from Restis’ representation to determine whether state secrets could be invoked. Restis immediately opened with the controversial topics mentioned above, also adding that in no other state secrets case has the government refused to issue a public affidavit addressing what kind of secrets are being protected. Restis’ representation also asserts that application of the 2009 Holder memorandum would evaluate the case in support of Restis. This is because, at least on the surface (since the government will not disclose anything but the surface level), the privilege claim does not seem to meet the requirements of the Holder memo. What is more is that UANI has not stopped making the claims that Restis is involved in business in Iran (the original purpose of this defamation suit).
After the plaintiffs have made a compelling argument that this case is indeed unique from other state secrets cases, the representative for the government essentially just says that every case is unique and so their argument isn't valid. When asked if it would be possible to have an in camera case including the plaintiff’s representation (he has security clearance such that he currently works in various SCIFs), the defendant simply says that that is “not done.” To me, this argument is simply not sufficient. It seems abundantly clear that the government is hiding some sort of illegal activity, or else why would they even become involved in this case?
If the state secrets privilege is upheld in this case, it could set an extremely dangerous precedent. The privilege is already intensely powerful: in a large majority of the cases where it is invoked, it is upheld. If Judge Ramos supports it here, that could mean that the government could start surreptitiously doing business with anyone they want, then invoking state secrets to hide it, and never see the consequences of this corruption.
Setty points out that this case has the potential to set another precedent too--if Judge Ramos allows the invocation of state secrets but does not dismiss the case and finds that Restis’ claims are valid, there are no guidelines as to what kind of remedy Restis could receive. Judge Ramos would have to come up with a new way to evaluate civil suits like this or dismiss the case altogether. Luckily for Restis, Judge Ramos seems to be actively seeking out ways that the case can be settled while keeping national security and the remedies in mind.
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