Friday, November 13, 2009
As previously discussed on the blog, the Totten doctrine requires dismissal of a case when "the very subject-matter" of the case is a state secret. Today's New York Times reports that the Second Circuit has dismissed Valerie Wilson's suit against the Central Intelligence Agency, in which she claimed that the Agency violated her free-speech rights when it required redaction of her 2007 book, Fair Game.
As reported in the Times, the Second Circuit's reasoning is based on a contractual override of Wilson's 1st Amendment rights: “When Ms. Wilson elected to serve with the C.I.A., she accepted a life-long restriction on her ability to disclose classified and classifiable information.” The problem is that at least some of the information in question had already been leaked to the public by the government and in any case was made public and widely reported on. No matter, says the court. The information is still classified, and she is still bound, even if governmental breaches “may warrant investigation.”
Although the entire panel voted to dismiss, Judge Katzmann concurred:
I agree with the majority that Ms. Wilson’s pre-2002 dates of service, if any, were originally properly classified by the CIA, have never been officially declassified, and were never officially disclosed by the CIA. Therefore, I also agree that this Court has no power to free Ms. Wilson from the secrecy agreement that she signed upon commencement of her employment with the CIA. At the same time, I write to observe that the CIA’s position in this litigation blinks reality in light of the unique facts of this case and the policies behind the doctrines at issue here. Indeed, the CIA’s litigation posture may very well be counterproductive to its purposes.
Judge Katzmann proceeds to explain that the CIA’s justification for the redaction was that the dates of Ms. Wilson’s service ought not to be revealed. However, those dates had already been revealed in a CIA-authored document, submitted on CIA letterhead and entered in the public record as part the Congressional Record in 2006. Judge Katzmann thus argued that while, as a legal matter, the court is without power to order the CIA to permit the release of classified information, whether or not it was already in the public domain, as a matter of policy, it is harmful to the reputation of the CIA for it to disseminate information and then also attempt to suppress it.
The opinion can be found here.