High court to put Clinton policy on classified documents under microscope

Monday, September 13, 1999

With considerable fanfare, President Clinton in 1995 overhauled the government’s system for classifying documents, declaring his “commitment to open government.”

Four years later, however, the administration is asking the Supreme Court not to order the release of a document deemed “innocuous” by lower judges who have seen it. The Supreme Court on Sept. 10 agreed to consider the government’s plea. The case will be argued in December.

By docketing the case, U.S. v. Weatherhead, the court set the stage for the first review of the Clinton classified documents policy, as well as the first review of the “national security” exemption of the current Freedom of Information Act.

The FOIA, amended in 1974, allows the government to withhold from public release those national defense or foreign policy documents that are “properly classified” according to criteria determined by presidential executive order.

The government invoked this so-called “Exemption 1″ in response to a FOIA request made by Spokane lawyer Leslie Weatherhead in 1994.

Weatherhead was representing Sally Anne Croft, one of two women accused of conspiring to kill a prosecutor with the U.S. Attorney’s Office. Croft and Susan Hagan were followers of the Indian guru Bhagwan Shree Rajneesh, who had established a commune in Oregon in the 1980s. The federal prosecutor was investigating alleged illegal activities in the commune.

Croft and Hagan were extradited from Great Britain to stand trial on the conspiracy charges. After the extradition, the British Home Office sent a letter to the U.S. Justice Department which, according to Weatherhead’s brief, expressed concern about whether Croft could receive a fair trial in Oregon.

Weatherhead, who believed the letter would aid his client, requested a copy of it under the FOIA. After consulting the State Department, the Justice Department refused to disclose the letter, triggering the lawsuit. While the lawsuit was pending, the State Department in October 1995 classified the letter under the new classification standards announced by Clinton.

State Department officials argued strenuously that release of the letter would damage relations with Britain, which had also requested that the letter remain confidential. “Confidential diplomatic dialogue is essential to the conduct of foreign relations,” said Strobe Talbott, the No. 2 official at the State Department. A trial judge sided with the government, but in a 2-1 decision last October, a panel of the 9th U.S. Circuit Court of Appeals reversed the ruling and ordered the document released.

“The government did not meet its burden” of justifying the need to keep the letter confidential, the appeals panel said. The government’s general assertion of the importance of confidentiality, the appeals panel said, did not explain why release of the specific document at issue was harmful to national security.

Based on its own scrutiny of the document, Judges Procter Hug Jr. and Stephen Reinhardt concluded it was “innocuous” and would not damage national security. Dissenting Judge Barry Silverman, however, said that determination should not be made by judges.

“We judges are way outside of our area of expertise,” Silverman said. “In matters of national defense and foreign policy, the court should be very leery of substituting its own geopolitical judgment for that of career diplomats whose assessments have not been refuted in any way.”

In asking the Supreme Court to reverse the 9th Circuit, Solicitor General Seth Waxman said the appeals panel “expressly refused to accord any deference to the declarations of the responsible executive branch officials.”

In reply, Weatherhead’s lawyer Charles Cooper told the Supreme Court that the 9th Circuit decision conformed to the Clinton administration’s new policy on classification, which removed the presumption that all government-to-government correspondence could not be disclosed. If the administration is now uncomfortable about these releases, it should change the policy, Cooper argues.

Though it has not scrutinized the national security exemption of the FOIA before, in other cases the Supreme Court has shown deference to the government on national security matters. Interestingly, the government’s brief mentions in a footnote that Chief Justice William Rehnquist, when he was an assistant attorney general in the Nixon administration 30 years ago, co-authored a memorandum chronicling presidential refusals to disclose information about foreign policy. His view that such refusals are justified may be the same today.