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From Federation of American Scientists:

The government has occasionally invoked the state secrets privilege in a legal proceeding without ever publicly revealing that it had done so, government attorneys disclosed in a pending state secrets case this week.

Last September, observers were surprised when the government intervened in a private defamation lawsuit brought by Greek businessman Victor Restis against the anti-Iran advocacy organization United Against Nuclear Iran. (“Private Lawsuit Jeopardizes State Secrets, US Says,” Secrecy News, September 14).  When the government further refused to specify the nature of the information it said was privileged, or even which agency was invoking the privilege, critics called the move extraordinary and unprecedented.

But it was not unprecedented, government attorneys replied this week. To the contrary, the current case is actually within the “historical spectrum” of state secrets cases, and there are some that have been even more secretive.

“There […] have been cases, like this one, where specific details concerning the Government’s interest in a private lawsuit could not be described on the public record,” attorneys told the court in their November 19 reply.

They cited, for example, a 1992 case known as Terex Corporation v. Richard Fuisz and Seymour Hersh, in which the plaintiff had accused the defendants of defamation. The government asserted the state secrets privilege in that case, but without identifying the source of the assertion, and the case was dismissed.

“There, as here, the Government submitted its supporting declaration ex parte and in camera and did not publicly disclose which agency asserted the privilege.”

“The Government does not fault plaintiffs and amici for not being aware of the Terex case, as there appear to be no public decisions from that matter on Westlaw,” attorneys added. The case was discussed in a declaration by Anthony J. Coppolino, attached to the government response.

But the “spectrum” of secrecy has sometimes extended even beyond that, the attorneys wrote:

“Although extremely rare, there also have been matters in which the Government’s state secrets assertion has been entirely under seal. By definition, of course, sealed matters cannot be found on the public record.”

Judging by that standard of total invisibility, the government has been substantially forthcoming in the present case, the government attorneys said, particularly since it admits that it is invoking the state secrets privilege.