WASHINGTON (CN) – With billions in pending aid payments to Israel, the government and a researcher are at loggerheads about a gag order that keeps U.S. officials from releasing any information about Israel’s nuclear weapons program.
Israel’s nuclear program is one of the country’s worst kept secrets, and one that successive U.S. presidents since Gerald Ford have avoided publicly acknowledging.
Grant Smith, director of the Institute for Research: Middle East Policy, complained in a federal complaint this summer that money Israel receives from the United States violates a long-standing ban on giving foreign aid to clandestine nuclear powers. But the Department of Justice said in a Dec. 12 opposition brief that Smith lacks evidence and standing.
“As an initial matter, plaintiff has not suffered any ‘particularized’ injury stemming from the government’s provision of foreign aid to Israel,” the brief states.
Smith fought back in a reply brief on Dec. 18, revisiting his argument that the combination of improper government classification and threatened prosecution creates a de facto gag order.
By creating a policy of “willful ignorance,” Smith says the government is muting his efforts to tell the public how Israel’s nuclear program destabilizes the Middle East.
“When all information about a particular domain of government activity suddenly dries up, is no longer reported on, and uncommented by any government official, the public assumes there is no longer anything worth reporting,” Smith’s reply brief states. “Such a state is inimical to democracy,” he added.
Discussing the case in a phone interview, Smith said the “gag order is trying to accomplish an impossible task: putting the genie of knowledge back into the bottle of secrets.”
“There is no way to do that,” Smith added.
Smith said the gag order stopped public-interest research on Israel’s nuclear program, and it effectively “deputized and turned into an accomplice” anyone who had worked on this issue.
In his reply brief, the researcher balked that he has no more standing to sue than any other generally aggrieved American.
“The plaintiff as a recognized information provider in this field, therefore decidedly does not concede only generalized grievances that he shares with ‘all Americans’ as contended by the defendants,” the brief states.
Smith says amendments to the 1961 Foreign Assistance Act known as Symington and Glenn bar clandestine nuclear powers from receiving American aid.
“We’re trying to convince the judge that the defendants wanted to institutionalize willful ignorance so that these aid deliveries could be unchallenged – so no one could ever say they were violating the Arms Export Control Act,” Smith said.
He also claims the government – at the behest of successive presidents – has implemented a systemic policy of nuclear ambiguity to suppress information, which culminated in a 2012 Department of Energy classification bulletin known as WNP-136.
Smith claims the bulletin violates the Administrative Procedure Act and directs government employees to keep mum on Israel’s nuclear program.
Whenever there is a huge change in administrative procedure, the Administrative Procedure Act requires public notice in the federal registrar and other actions, Smith noted.
By actually implementing a gag order, Smith said, the Obama administration skirted that law and went farther than any previous administration.
“There’s always been a resistance to releasing information about Israel’s nuclear weapons program, but the Obama administration uniquely decided to create this legislative rule and outright ban it,” Smith said.
In its opposition brief, the Justice Department said Smith’s claims are barred by the political-question doctrine: the president has “exclusive discretion” to decide whether Israel violated the Symington and Glenn amendments.
“No president has determined that Israel has engaged in the conduct specified in the statute since the relevant amendments were first enacted in the late 1970s,” the brief states. “During this time, moreover, Congress has continued to appropriate funds for foreign assistance to Israel,” it continues.
But Smith said in an interview there are holes in the DOJ’s argument.
“They’re saying that the president can be willfully ignorant,” he said. “The president is supposed to know who has nuclear weapons and who doesn’t.”
Drawing a parallel to drug prosecutions, Smith noted that willful-ignorance arguments do not hold up, for example, when a drug trafficker claims to have no idea about drugs in his car.
“You’re supposed to know they’re in the car,” Smith said.
Smith also finds support for his argument in the Supreme Court’s recent rejection of President Obama’s executive actions on immigration – Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents.
The Supreme Court’s 4-4 split left in place a ruling that blocked the executive actions.
Smith said that shows a limit to the president’s authority. When the president becomes aware of Symington and Glenn violations, federal law requires him to submit a report to Congress outlining the violations, followed by commensurate action.
“Where the activities are most egregious, the maximum response under the law – aid cutoff – is required,” Smith’s Dec. 18 brief states.
“We’re telling the judge that these are not discretionary items like the Justice Department claims they are,” Smith said in an interview. “They should in fact be under the very clear provisions of an aid cut off because that’s the most drastic possibility under these amendments,” he added.
But Smith also rejects the DOJ’s argument that no U.S. president has ever determined that Israel has a nuclear weapons program.
Smith says the Carter administration concluded that Israel had conducted a nuclear test with Apartheid South Africa on Sept. 22, 1979, known as the Vela incident.
Documents available on the nuclear vault of George Washington University’s National Security Archive indicate that conclusion was later whitewashed for political considerations.
“It’s just simply incorrect for Justice Department to say that they did not find Israel had a nuclear weapons program,” Smith said. “They did find that, and they decided to whitewash that.”
The DOJ declined to comment on the pending litigation.