[A2k] USTR loses FOIA case involving U.S. negotiating position on the Free Trade Agreement of the Americas.

Jamie Love james.love at keionline.org
Fri Apr 22 12:47:14 PDT 2011

Thanks for Emi for bringing to our attention this encouraging report
from Steven Aftergood.


Court Rejects Agency’s National Security Claim
April 22nd, 2011 by Steven Aftergood

In Freedom of Information Act litigation, courts will almost always
defer to a government agency when it asserts that national security
requires that certain information remain classified.  Judges say they
are reluctant to “second guess” agency national security experts, and
there is a substantial body of case law that discourages them from
doing so.

But earlier this month, Judge Richard W. Roberts of the DC District
Court considered an agency’s national security claim, found it
unpersuasive, and rejected it (pdf).

In that FOIA case, Center for International Environmental Law vs. the
Office of the United States Trade Representative, the plaintiff sought
a USTR document concerning the U.S. negotiating position on the Free
Trade Agreement of the Americas.  USTR said the document was
classified because the international negotiations were confidential
and the document’s disclosure would result in damage to U.S. foreign

“USTR argues that release of document 1 would constitute a breach of
its agreement with the other nations participating in the FTAA
negotiations. [USTR] states that [t]here is an understanding among the
34 participating governments, consistent with longstanding practice in
multiparty trade negotiations, that they will not release to the
public any negotiating documents they produce or receive in confidence
in the course of the negotiations unless there is a consensus among
the 34 governments to do so.”

But remarkably, the judge didn’t buy it, particularly since it was a
question of releasing a U.S. document, not a foreign document.

USTR “has not shown it likely that disclosing document 1 would
discourage foreign officials from providing information to the United
States in the future because those officials would have no basis for
concluding that the United States would dishonor its commitments to
keep foreign information confidential,” he concluded.

“Although a court must defer to agency affidavits predicting harm to
the national security, ‘[d]eference… does not mean acquiescence’,”
Judge Roberts wrote.  See the April 12, 2011 Memorandum Opinion here.

The ruling that international negotiations cannot necessarily be used
as a pretext for classifying U.S. government information may have
important ramifications in other policy areas.

So, for example, the U.S. government currently makes less information
about the makeup of the U.S. nuclear arsenal under the New START
Treaty than it previously did under the START regime, observed Hans
Kristensen of FAS last month.

Although such stockpile information is generated and is regularly
exchanged with the government of Russia under the provisions of New
START, it is currently classified and has still not been made publicly
available.  If it became necessary to challenge the classification of
this information in court, then Judge Robert’s new ruling might offer
an apt precedent.

“Although the Constitution permits the judiciary to play a role in
judging government secrecy claims and Congress has repeatedly endorsed
that role, most prominently in the Freedom of Information Act, judges
have been reluctant to question Executive Branch secrecy,” observed
Meredith Fuchs in a 2006 law review article that argued for a more
active judicial role in reviewing classification decisions. “Without
judicial intervention…, the incentives on the Executive Branch to
overreach far outweigh any checks on excessive secrecy.”

James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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