Government officials release British consul’s letter to attorney

Thursday, December 2, 1999

State Department officials last week gave up a five-year battle to preserve the confidentiality of a letter from British officials concerning a woman's extradition from England to face conspiracy charges in the United States. They delivered the correspondence to her lawyer on Nov. 23.

Attorney Leslie Weatherhead of Spokane, Wash., had sought the letter on behalf of his client Sally Anne Croft since 1995. He had the backing of an October 1998 ruling by the 9th U.S. Circuit Court of Appeals, which ordered the letter released. He and government attorneys are due to argue the case, U.S. v. Weatherhead, before the U.S. Supreme Court on Dec. 8.

But the release of the letter does not have open-government advocates cheering — at least not yet.

On the same day State Department officials gave Weatherhead the letter, government attorneys filed a motion with the Supreme Court asking the justices to vacate the lower-court ruling and render the whole case moot.

“That disposition will remove the precedential force of the Ninth Circuit's decision, and thereby will do what is possible to prevent that decision from chilling future confidential communications between the United States and the British government and other foreign governments,” U.S. Solicitor General Seth Waxman wrote to the court on Nov. 23.

In his brief, Waxman told the court that British officials had relented and allowed the letter to be released only after they learned that Weatherhead had already obtained information from a Seattle-based British consul that disclosed much of the letter's contents. Weatherhead's failure to show the information to government officials had prevented a proper review of the case, Waxman said, and thus should make the 9th Circuit ruling null and void.

The case stretches back five years to Weatherhead's first Freedom of Information Act request on behalf of Croft, one of two women charged with conspiring to attack a federal prosecutor who had been investigating possible illegal activities among members of a commune. Croft and Susan Hagan were followers of Indian guru Bhagwan Shree Rajneesh, who had a commune in Oregon in the 1980s.

The two women returned to their native England before they were charged.

Although no attack was carried out, U.S. prosecutors in 1994 persuaded British officials to extradite Croft and Hagan. The next year, both Croft and Hagan were sentenced to five years in prison for conspiracy to commit murder. They were released in 1998 and deported to England.

But Weatherhead learned of a letter from British officials questioning whether Croft would receive a fair trial in the United States. Citing FOIA, Weatherhead asked for a copy of the letter. U.S. officials told him it would not be released for security reasons.

The 9th Circuit in 1998 ordered the letter released, a decision that overturned a lower court ruling. The appeals court described the letter as “innocuous” and stated that the government had failed to explain how its release would jeopardize national security.

Justice Department lawyers appealed the decision, arguing that the court had superseded its authority. They also said that release of the letter might discourage foreign governments from providing information to the United States in the future.

The Supreme Court agreed to take the case to clarify when the Freedom of Information Act requires government officials to release communications from foreign governments. Such scrutiny also focuses attention on a 4-year-old executive order from President Clinton designed to overhaul the government's system for classifying documents.

The high court hasn't ruled on the government's motion to vacate the 9th Circuit decision.

In the British Home Office letter, which is included in Waxman's motion, British officials expressed concern about whether Croft and Hagan could receive a fair trial in Oregon. They asked U.S. officials to make sure “that questions of local prejudice are examined most carefully by all those concerned in the trial process.”

One open-government advocate said the content of the letter showed that claims of a national security breach were “legal fiction.”

“What strikes me is, after all is said and done, the government claims concerning national security were legal fiction,” said Steve Aftergood of the Federation of American Scientists, a group devoted to reducing government secrecy. “The document and the information are out, and there is no resulting damage. … Relations between the U.S. and the United Kingdom will somehow survive.”

Officials in the solicitor general's office declined to comment on a pending court case and referred questions to Waxman's brief.

Weatherhead didn't return calls to his Spokane office.

Aftergood said the case illustrates that government officials have been “wrong down the line.”

“I think this case actually demonstrates the importance of judicial review,” he said. “The appeals court cut to the heart of the matter and said it was innocuous and it should be released. [The judges] were right at the time, and they were right in retrospect.”