Stillman v. Department of Defense, Civ. No. 01-1342 (EGS) [23-1] (D. D.C. 6/7/2002)

Decision Date07 June 2002
Docket NumberCiv. No. 01-1342 (EGS) [23-1].
PartiesDANNY B. STILLMAN, Plaintiff, v. DEPARTMENT OF DEFENSE, et al. Defendants.
CourtU.S. District Court — District of Columbia
MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Danny Stiliman is a former employee of the Los Alamos National Laboratory who has written a book on China's nuclear weapons program. Plaintiff filed this lawsuit against the United States Department of Energy ("DOE"), Department of Defense ("DOD") and the Central Intelligence Agency ("CIA") alleging that defendants' classification of portions of plaintiff's manuscript during the mandatory pre-publication clearance process was improper and violated his First Amendment rights. After extended negotiations over the passages at issue, the remaining defendants DOD and CIA maintain that they have properly classified his manuscript. Plaintiff has participated in negotiations with defendants over defendants' classification determinations without the assistance of counsel. Defendants have denied access to plaintiff's counsel to those portions of the manuscript that have been designated by defendants as classified.

The case comes before this Court on plaintiff's motion to compel defendants to permit his counsel access to the classified portion of the manuscript and defendants' classified pleadings in support of those classifications. Plaintiff has alleged that denying his counsel access to this information, and preventing plaintiff from speaking to his counsel about this information, violates his First Amendment rights to a reasonable pre-clearance process and to speak freely with counsel. Defendants respond that their decision to deny plaintiff's counsel access to the information because he does not have a "need to know" is not reviewable by this Court, and even if it were, the compelling national security interests in preventing disclosure of this sensitive information outweigh any First Amendment interest here.

Having considered plaintiff's motion to compel, the responses and replies thereto, the additional rounds of briefing requested by this Court, the briefs of amicus curiae American Civil Liberties Union (ACLU), the oral argument of the parties and amicus before this Court on April 26, 2002, as well as the applicable statutory and case law, this Court GRANTS IN PART and DENIES IN PART plaintiff's motion to compel.

BACKGROUND

Danny Stillman is a former employee of the Los Alamos National Laboratory ("Los Alamos"), which operates under contract with the DOE for work related to the nuclear weapon stockpile of the United States. After Mr. Stillman's retirement from full-time employment at Los Alamos, he authored a manuscript entitled "Inside China's Nuclear Weapons." That manuscript describes his nine trips to China to visit nuclear weapons facilities and test sites between 1990 and 1999.

As a condition of Mr. Stillman's employment at Los Alamos, he signed a number of non-disclosure agreements that require submission of this manuscript to the government for pre-publication review to determine whether any portion contains classified information. Mr. Stillman complied with those agreements and submitted his manuscript for review. In October of 2000, Mr. Stillman was informed that no portion of his manuscript would be approved for public release. Plaintiff engaged in ongoing negotiations with defendants over the classification determination.

On June 18, 2001, plaintiff filed this lawsuit, alleging that the DOE, DOD, and CIA have violated his First Amendment rights by improperly classifying his manuscript and refusing to authorize its publication. After the filing of this lawsuit, defendants removed their objections to a substantial portion of the manuscript. The DOE's objections to the publication of certain information were resolved when plaintiff agreed to delete the information at issue. DOE was subsequently dismissed from this suit. See Order of 10/16/01. The DOD and CIA continued to withhold authorization to publish portions of Mr. Stillman's manuscript. During the course of this lawsuit, plaintiff and defendants have conducted negotiations over that manuscript, the result of which has been to further narrow the scope of the disagreement. However, substantial disagreement remains.

While Mr. Stillman obviously has access to the portions of the manuscript he wrote to which defendants object, his counsel does not. Plaintiff's counsel, Mark Zaid, has consistently requested authorization for access to the material identified as classified in plaintiff's manuscript since being retained by plaintiff in March of 2001. At a status hearing before this Court on September 5, 2001, government counsel indicated that Mr. Zaid was being denied access to the classified information because he did not have the requisite "need to know," as set forth in Executive Order 12958 ("Classified National Security Information"), 60 Fed. Reg. 19825 (Apr. 17, 1995), 3 C.F.R. § 333 (1976), reprinted at 50 U.S.C. § 435 (note).

Executive Order 12958 sets forth a uniform system for classifying, safeguarding, and declassifying national security information. 60 Fed. Reg. 19825 (April 17, 1995). Section 4.2 of Executive Order 12958 states that "a person may have access to classified information" provided three conditions are met: 1) "a favorable determination of eligibility for access has been made by an agency head or the agency's head's designee;" 2) "the person has signed an approved nondisclosure agreement;" and 3) "the person has a need-to-know the information." Exec. Order 12958 § 4.2, 60 Fed. Reg. at 19836. "Need-to-know" is defined at § 4.1(c) of the Order, as "a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function." Exec. Order 12958 § 4.1(c), 60 Fed. Reg. at 19836. Executive Order 12958 provides a right and procedures for appeal, but only to "authorized holders of information" who challenge classification status of information as improper. Exec. Order 12958 § 1.9, 60 Fed. Reg. at 19830.

Following the September 5, 2001 hearing, Mr. Zaid submitted letters of appeal to both DOD and the CIA, pursuant to the remedies set forth in Part 5 of Executive Order 12968. Executive Order 12968, entitled "Access to Classified Information," creates a "uniform Federal personnel security program for employees who will be considered for initial or continued access to classified information." 60 Fed. Reg. 40245 (August 2, 1995). Mr. Zaid's appeal was denied by both the CIA and DOD on October 5, 2001. See Pl.'s Motion to Compel, Ex. 1-A (letter to Mark Zaid from Robert J. Eatinger, Jr., Associate General Counsel, CIA dated Oct. 5, 2001 and letter to Mark Zaid from Stewart F. Aly, Associate Deputy General Counsel, DOD dated Oct. 5, 2001) ("CIA letter" and "DOD letter").

The CIA letter, signed by Robert J. Eatinger, Jr., Associate General Counsel of the CIA, stated that although Mr. Zaid had no appeal rights pursuant to Executive Order 12968 because he was not a government employee, even if he could appeal, he was denied access to the classified information because the CIA determined he did not have a "need to know" as defined in Executive Order 12958. See CIA letter. The letter stated by way of explanation that "[t]he fact that you represent a client in litigation with the CIA does not, alone, establish a need-to-know. Under Executive Order 12958 [sic], this determination is wholly within the discretion of the agency controlling the information, and there is neither a right to, nor an administrative process for, appeal." Id.

The DOD letter, signed by Stewart F. Aly, Associate Deputy General Counsel of DOD, also stated that Mr. Zaid did not have any right to appeal under Executive Order 12968, and even if he did, the DOD has determined he lacks the requisite "need to know." See DOD letter. The letter explains:

[T]he Department of Defense has determined that you have not demonstrated a "need-to-know" that information in order to perform or assist in a lawful and authorized governmental function . . . The mere fact that you represent a plaintiff in a case involving classified information does not establish a "need-to-know." There is no right to appeal a need-to-know determination. See Part 5, Section 5.1 of Executive Order 12968 (a need-to-know "is a discretionary determination and shall be conclusive")

Id. Further, DOD's letter stated that while DOD has established policies and procedures by which attorneys representing DOD military, civilian or contractor personnel engaged in lawsuits against the DOD may be provided access to DOD classified information, the fact that Mr. Stillman was never an employee of DOD precluded the applicability of those regulations. Id. (citing DOD 5200.2-R, ¶ 3-404(f)).

Because both defendants determined that Mr. Zaid did not have the requisite need to know, neither made a determination as to his background or eligibility for access. See DOD letter ("the Department of Defense has not made any determination regarding your eligibility for access to classified information under other circumstances. The decision not to authorize your access to the classified information at issue in this Stillman manuscript is based solely on a determination that you do not have a `need to know' this information."); CIA letter ("Since, as an initial matter, you were found to have no need-to-know, the Agency has no need to, nor did it, determine your access eligibility in this case."). Thus, defendants' denial of access did not turn on any particular concern with Mr. Zaid.1

The declarations from Mr. Eatinger and Mr. Aly filed by defendants further explain their respective decisions that plaintiff's counsel lacked the requisite need to know. See Defs.' Supp. Mem. of 3/8/2002, Declaration of Robert J. Eatinger, Jr. ("Eatinger Decl.")...

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