WASHINGTON (CN) – On the same morning that the Democratic leader of the Senate confirmed that Israel has a clandestine nuclear program, a federal judge rejected a researcher’s attempt at blocking U.S. aid to Israel on that basis.
"It is a well-known fact that Israel has nuclear weapons, but the Israeli government doesn't officially talk about what kinds of weapons and where, et cetera," Sen. Chuck Schumer of New York said Monday, addressing reporters with House Minority Leader Nancy Pelosi at the National Press Club.
One of Washington’s worst kept secrets since Gerald Ford’s administration, Israel’s nuclear program is at the heart of a series of federal complaints by Grant Smith, director of the nonprofit Institute for Research: Middle Eastern Policy.
U.S. District Judge Tanya Chutkan on Monday tossed a Smith case from the summer that says Israel’s receipt of U.S. aid contravenes a provision of the International Security Assistance and Arms Export Control Act that prohibits giving foreign aid to a clandestine nuclear power on the taxpayer’s dime.
Smith also claimed that the government uses improper classification rules to thwart the release government information about Israel's nuclear weapons program.
Saying that federal officials who speak about Israel's nuclear program can be imprisoned under Department of Energy directive WNP-136, Smith said that this "nuclear ambiguity" about Israel’s nuclear program is particularly grievous to researcher like him.
Smith wanted the directive ruled unlawful, but Judge Chutkan determined Monday that Smith lacks standing to sue because he failed to show he suffered a specific injury resulting from the provision of U.S. aid to Israel.
'"Indirect injuries' in the form of anti-American sentiment around the globe arising out of sympathy for the Palestinian people are neither particularized nor concrete or imminent," the 7-page ruling says.
"To the extent that plaintiff alleges injuries suffered by all American taxpayers, those injuries do not provide him with constitutional standing, nor do they give rise to a claim which this court has jurisdiction to address," the ruling continues.
Chutkan also found that Smith failed to allege violations of the establishment clause.
"The only specific injuries plaintiff alleges he has personally suffered are that defendants’ unlawful applications of ‘nuclear ambiguity’ have cost plaintiff $12,795 in FOIA administrative and litigation costs and are likely to generate further injury in the near future,'" the judge wrote.
In an email about the ruling, Smith said Chutkan misunderstood his allegations about an Obama executive order that outlined a system for classifying national-security information.
Chutkan said Smith had claimed that Executive Order 13526 violates the Administrative Procedure Act, but Smith said he never alleged that.
Smith noted that this discrepancy might prove useful if he appeals.
The researcher also took issue with how Chutkan interpreted his claim for enforcement of the Arms Export Control Act.
"We're not asking for 'interpretation' of the AECA, just a warranted application," Smith said.
In dismissing Smith’s claims about the alleged gag order, Chutkan cited precedent less than a month old, the D.C. Circuit’s Jan. 31 ruling in the case Citizens for Responsibility & Ethics in Washington v. U.S. Department of Justice.
"To the extent that plaintiff alleges informational injury — harm resulting from his inability to access the information he seeks — based on Executive Order 13526, he must seek redress under FOIA and not the APA," the ruling states.
Smith said that the recent precedent was not meant to comprehensively remove matters on public records from review under the Administrative Procedure Act.
"The opinion even states, 'no one should understand our decision as "assum[ing], categorically," — i.e., outside the FOIA context — that an alternative remedy will preclude APA relief even if that alternative circumscribes courts' authority to order appropriate injunctive relief," Smith noted in an email.
The Justice Department did not immediately respond to a request for comment about the ruling.
Smith had sued the secretaries of the Departments of Defense, Energy, Treasury and Commerce, along with President Barack Obama, CIA Director John Brennan, Defense Secretary Ash Carter and Secretary of State John Kerry.
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