By Steven Aftergood
In an electrifying decision on August 26, the US District Court (DC) ruled against the government, saying that counsel have a “need to know” and that they may have access to the classified information that their clients already possess.
Ordinarily, decisions about granting security clearances and determining whether an individual has a “need to know” certain classified information are made by the executive branch. But a federal judge recently ruled that a court can also make such determinations and can require the disclosure of classified information to a cleared individual even against the wishes of the executive branch.
In an electrifying decision on August 26 in the case of Richard A. Horn v. Franklin Huddle, Jr., Judge Royce Lamberth concluded that the parties in that lawsuit need to discuss the classified information they possess with their counsel. Judge Lamberth therefore ruled — against the government — that counsel in this case have a “need to know” and that they may have access to the classified information that their clients already possess.
“The deference generally granted the Executive Branch in matters of classification and national security must yield when the Executive attempts to exert control over the courtroom,” Judge Lamberth wrote.
That ruling drew an immediate protest. “The Government respectfully disputes that conclusion as well as the Court’s authority to reach it,” Justice Department attorneys responded on September 2, requesting a stay of Judge Lamberth’s order pending appeal.
“The Court is without authority to make a ‘need to know’ determination in this context,” the Justice Department said. “A court may not order the Executive to grant private counsel or any other person access to classified information.”
At issue are basic questions over the exclusivity of executive branch control of classification information and the court’s ability to regulate its own judicial proceedings. Those questions are likely to be presented to an appeals court in the near future.
The government’s motion for a stay was naturally opposed both by the plaintiff and the defendants. “The position that the United States has unfettered discretion to decide who is entitled to receive classified information leaves no role whatsoever for the judiciary in accommodating the interests of litigants and ensuring against abuse of discretion,” wrote attorneys for one of the defendants.
Posted at Secrecy News, a column published by the Federation of American Scientists. H/T Laudyms
Ed. note: Also see The State Secrets Privilege and Other Limits on Litigation Involving Classified Information by Edward C. Liu (Congressional Research Service: May 28, 2009).
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