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Friday, April 19, 2024 | Back issues
Courthouse News Service Courthouse News Service

In Murky Case Against Anti-Iran Group,|Uncle Sam Says Mum’s the Word

MANHATTAN (CN) - The United States really wants to throw out a lawsuit against United Against Nuclear Iran, a group linked to an ex-CIA director and an ex-Mossad chief. But in a new, 42-page brief that is a paean to state secrecy, government lawyers refuse to explain why that is, what sort of secrets are at risk and whether a "foreign entity" is involved.

Describing itself as a "nonpartisan advocacy group," United Against Nuclear Iran (UANI) was founded by top officials for the past three presidents and counts among its advisory board members Israel's former top spy Meir Dagan and George W. Bush's ex-Homeland Security advisor Frances Townsend.

Since its founding in 2008, the group has campaigned to stop corporate giants like General Electric, Caterpillar and Ingersoll Rand from doing business with Iran. And its "name and shame" program labeled Greek shipping magnate Victor Restis a "front man" for the Islamic Republic last year.

After Restis sued the group for defamation last year in New York, his lawyers wanted to dig up information about Dagan, billionaire Thomas Kaplan and other UANI members and supporters over the course of discovery.

And then Uncle Sam stepped in, claimed the case could expose state secrets, and argued for dismissal.

Abbe Lowell, who represents Restis for the Washington-based firm Chadbourne & Parke, called the maneuver "strange" and "unprecedented" in a 30-page memorandum last month seeking not the alleged secrets themselves, but an unclassified description of their nature.

Lowell also accused UANI of possibly "graymailing" the U.S. Attorney's office by threatening to expose the government's hand in the group's campaigns if the litigation proceeds.

U.S.-Iranian relations stand at a crossroads, with the two governments reportedly in Vienna now negotiating a deal in which Washington would lift sanctions in exchange for Tehran's assurance that the uranium it is enriching is not used for a weapon.

Meanwhile, the historic alliance between the United States and Israel has been said to be at a "crisis" point in the wake of the State Department's criticism of settlement expansion in East Jerusalem - and hard-line Prime Minister Benjamin Netanyahu's objections to any rapprochement with Iran.

As the diplomatic high-wire act in Vienna kicked into full gear, Assistant U.S. Attorney Michael Byars told a New York federal judge that forcing the United States to publicly disclose the nature of the secrets relevant to the case would be "playing with fire."

"For example, in the circumstances of a case such as this, different inferences might be drawn about the nature of the privileged information from the mere identity of the agency asserting privilege," Byars' memo states. "Other details, such as whether a foreign entity is at issue and why disclosure could harm national security, likewise could provide valuable insights into what the privileged information may be."

For its part, UANI said in a press statement related to the case that it "has never sought or received funds from any foreign individual."

The government contends that any more clues about the secrets would be a bridge too far.

"Any response to plaintiffs' demands for more information - regardless of whether it would confirm or deny precise details of what is at issue in the privilege assertion - would inherently risk disclosure of what the privilege concerns," the government's memo states. "But in a case where the very nature of the government's interest in the underlying lawsuit is itself properly protected, such a course is neither required nor appropriate."

Praising the government's disclosure so far in a "publicly filed brief," Byars said other cases he could cite were entirely under seal.

And, he added in a footnote, that he could cite those cases - for the judge's eyes alone and away from Restis's lawyers.

In his prior filing, Lowell suggested that the government could disclose the secrets to lawyers for Restis who had security clearances.

A common practice in Guantanamo habeas cases, cleared counsel can see evidence but cannot disclose what they saw to the public. But this practice is appropriate for Guantanamo detainees, and not Restis, because the prisoners have "liberty interests in being free from custodial detention," the government claims.

While acknowledging that its use of state secrets may be "rare" and even "drastic," the government insisted that pushing to dismiss the case on these grounds is "not unprecedented."

A number of civil liberties groups disagreed, including the American Civil Liberties Union, the Brennan Center for Justice, the Center for Constitutional Rights, the Constitution Project, the Sunlight Foundation, and the Electronic Frontier Foundation.

They joined Restis as friends-of-the-court.

On the plus side for open-government advocates, not a single word of the lengthy memorandum fighting further disclosure is redacted.

The U.S. Attorney's office declined to comment.

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