We know the U.S. government believes that it has such significant national security interests at stake in a libel suit by the Greek shipping magnate Victor Restis against the non-profit United Against Nuclear Iran that on Friday, the Justice Department invoked the state secrets privilege and asked for Restis’ suit to be dismissed. What we don’t know is why.
The government’s brief is maddeningly opaque about its interest in a private libel case. It states just that the head of an unnamed federal agency has determined that information related to Restis’ claim is subject to the powerful and rarely invoked state secrets privilege. Even revealing the identity of the agency or the basis of the assertion of the privilege, according to Justice, might compromise “classified and privileged matters,” the brief said. All of the specifics on Justice’s claim of privilege are contained in declarations that only U.S. District Judge Edgardo Ramos of Manhattan – and not even lawyers for Restis and UANI – can see. The judge will have to decide whether to permit Justice to intervene, though that’s really a formality because of the executive branch’s broad discretion to claim the state secrets privilege.
It’s extremely unusual, though not unprecedented, for the government to invoke the state secrets privilege and move to intervene in private litigation. In a 2010 decision called Mohamed v. Jeppesen Dataplan, for instance, Justice secured the dismissal of an Alien Torts Act suit against a company that allegedly helped the Central Intelligence Agency transport suspected terrorists for interrogation outside of the United States, after the 9th U.S. Circuit Court of Appeals, sitting en banc, concluded that the case implicated the state secrets privilege.
But the U.S. government’s interest in shrouding the CIA’s extraordinary rendition program seems obvious. The national security implications of Restis’ case against UANI are, as the New York Times reported Sunday, much murkier. Restis’ lawyer, Abbe Lowell of Chadbourne & Parke, told the Times that “there is no precedent, literally, for what the government is attempting to do.” (Lowell didn’t return my call.) Ben Wizner of the American Civil Liberties Union, who represented plaintiffs in the 9th Circuit case that was dismissed under the state secrets doctrine, told Times reporter Matt Apuzzo, “I have never seen anything like this.”
The government’s motion to dismiss Restis’ case clearly benefits UANI, a group headed by Mark Wallace, who served as a United Nations ambassador in the George W. Bush administration. (UANI’s other founders include former CIA director James Woolsey and the late Richard Holbrooke, a diplomat and former assistant secretary of state.) UANI has issued public denunciations of Restis, accusing him of violating international sanctions and aiding Iran’s development of nuclear arms by secretly exporting Iranian oil in his company’s ships. Restis said UANI’s “name and shame” announcements were hurting his business and sued for libel.