"Imagine that someone has wronged you, and you sue them. Then the government magically appears in court and asks that your suit be dismissed because, for reasons it won't tell you, state secrets might be dredged up in the course of the litigation. You have no idea what they're talking about. But after secret discussions with the judge from which both you and the defendant are excluded, the court dismisses your suit.
This Kafkaesque scenario couldn’t happen in the U.S., right? Not until Monday, it couldn’t. But a federal judge in the Southern District of New York just did exactly this, dismissing a defamation suit by Greek shipping magnate Victor Restis against a shady advocacy group called United Against Nuclear Iran.
This is the first time a U.S. court has dismissed a lawsuit on the basis of state secrets when the case didn't involve either the government or a defense contractor deeply enmeshed with classified government contracts. It's also a marvelous example of how secrecy fundamentally distorts the legal process and subverts the rule of law.
Usually when I write about a case, I begin by describing the facts. Here the facts are so secret I can barely say anything. United Against was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran. Its board includes former directors of foreign intelligence services including the U.K.'s MI-6, Germany's BND -- and Israel's Mossad.
One of the strategies pursued by United Against is a campaign to “name and shame” entities that trade with Iran. The organization named Restis, who in turn sued United Against for falsely claiming his companies were “frontmen for the illicit activities of the Iranian regime.”
The Department of Justice intervened in September, asserting the state secrets privilege. That so-called privilege doesn't come from the Constitution or from statute. It’s an unwritten judicial rule that allows the government to block discovery of information through ordinary litigation “when disclosure would be inimical to national security,” as the district court described it."
This Kafkaesque scenario couldn’t happen in the U.S., right? Not until Monday, it couldn’t. But a federal judge in the Southern District of New York just did exactly this, dismissing a defamation suit by Greek shipping magnate Victor Restis against a shady advocacy group called United Against Nuclear Iran.
This is the first time a U.S. court has dismissed a lawsuit on the basis of state secrets when the case didn't involve either the government or a defense contractor deeply enmeshed with classified government contracts. It's also a marvelous example of how secrecy fundamentally distorts the legal process and subverts the rule of law.
Usually when I write about a case, I begin by describing the facts. Here the facts are so secret I can barely say anything. United Against was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran. Its board includes former directors of foreign intelligence services including the U.K.'s MI-6, Germany's BND -- and Israel's Mossad.
One of the strategies pursued by United Against is a campaign to “name and shame” entities that trade with Iran. The organization named Restis, who in turn sued United Against for falsely claiming his companies were “frontmen for the illicit activities of the Iranian regime.”
The Department of Justice intervened in September, asserting the state secrets privilege. That so-called privilege doesn't come from the Constitution or from statute. It’s an unwritten judicial rule that allows the government to block discovery of information through ordinary litigation “when disclosure would be inimical to national security,” as the district court described it."
