Can A Court Grant Access to Classified Info?

Ordinarily, decisions about granting security clearances and determining whether an individual has a “need to know” certain classified information are made by the executive branch.  But a federal judge recently ruled that a court can also make such determinations and can require the disclosure of classified information to a cleared individual even against the wishes of the executive branch.

In an electrifying decision on August 26 (pdf) in the case of Richard A. Horn v. Franklin Huddle, Jr., Judge Royce Lamberth concluded that the parties in that lawsuit need to discuss the classified information they possess with their counsel.  Judge Lamberth therefore ruled — against the government — that counsel in this case have a “need to know” and that they may have access to the classified information that their clients already possess.

“The deference generally granted the Executive Branch in matters of classification and national security must yield when the Executive attempts to exert control over the courtroom,” Judge Lamberth wrote.

That ruling drew an immediate protest.  “The Government respectfully disputes that conclusion as well as the Court’s authority to reach it,” Justice Department attorneys responded on September 2 (pdf), requesting a stay of Judge Lamberth’s order pending appeal.

“The Court is without authority to make a ‘need to know’ determination in this context,” the Justice Department said.  “A court may not order the Executive to grant private counsel or any other person access to classified information.”

At issue are basic questions over the exclusivity of executive branch control of classification information and the court’s ability to regulate its own judicial proceedings.  Those questions are likely to be presented to an appeals court in the near future.

The government’s motion for a stay was naturally opposed both by the plaintiff and the defendants.  “The position that the United States has unfettered discretion to decide who is entitled to receive classified information leaves no role whatsoever for the judiciary in accommodating the interests of litigants and ensuring against abuse of discretion,” wrote attorneys (pdf) for one of the defendants.

No Responses to “Can A Court Grant Access to Classified Info?”

  1. Shaun September 11, 2009 at 9:17 PM #

    Where separation of powers exist within a nation state, then the courts should have jurisdiction to rule in anything pertaining to that nation state. Too often there is a lack of accountability and the courts should be that recourse available to all to seek that restitution where the government has failed to provide.

  2. Michael OKane September 13, 2009 at 11:22 AM #

    This is hypocrisy. Has anyone looked at what the government does with clearances on the criminal side of the court? The government is being hypocritical about this. And it looks like the attorneys don’t know the history of these cases. Maybe it’s not reported on, I don’t know.
    I once held a security clearance from one of these agencies. Top Secret, Crypto, Noforn. Never used it. When I did have occasion to finally see classified information, I was surprised to see that newspaper articles and other public source information were routinely classified. The more I spoke to others who had clearances, the more it became obvious that classified information wasn’t worth it. Still, the government is fiercely protective of what it calls “classified information.”
    Fast forward.
    The United States invades Panama and seizes General Noriega, amongst others. I represented one of the others (as I had been doing before the invasion. Interesting sidenote: they told me that if they would dismiss the charges against Noriega for political reasons, they’d also dismiss against my client.) All of the Noriega attorneys-except me-ran to and obtained security clearances. They sent “court security advisers” from Washington. These were CIA guys, a man and a woman. They were quite upset that I wouldn’t take the clearance, because it’s all about control. Please note that the clearances were everything but forced on the attorneys, so I have to laugh when I read your article stating that the government won’t give them out. A few days after I turned my clearance down, I revealed the existence and location of a NSA listening station on Ancon Hill in pleadings filed in open court. The press jumped on it, the judge sent out police to arrest me, it was hysterical. When I arrived in chambers, I pointed out that the location I had described was listed in and published in the Canal Zone phone book. Of course, the prosecutors didn’t have a copy.
    The lawyers in the coffee table would be so much better off without clearances. They should look at the Operation Court Broom case in Miami–that case contains all you need to know info about how the government can bug offices. Simply tell the government, “hey, if classified info comes out at trial, that’s your problem.”
    Utter and complete hypocrisy. Or perhaps, institutional Alzheimer’s, which is just as bad.

    Best Regards,

    Michael OKane

  3. Victoria September 23, 2009 at 6:51 AM #

    I enjoyed reading Michael’s comment – I’m not sure whether to be heartened or saddened that the US is just as bad as the UK on this front!