Secrecy Upheld in Name|of George Washington

(CN) - The U.S. Trade Representative need not disclose a confidential position paper related to U.S. trade relations with most favored nations, the D.C. Circuit ruled.

Quoting President George Washington, the 11-page opinion states: "The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be extremely impolitic: for this might have a pernicious influence on future negotiations, or produce immediate inconveniences; perhaps danger and mischief, in relation to other powers."

The dispute stems from a 2000 request under the Freedom of Information Act from the nonprofit Center of International Environmental Law, seeking to access papers that the U.S. circulated during negotiations at a free trade summit held earlier that year.

"After years of litigation, only one document remains in dispute - a white paper referred to in the district court proceedings as 'document 1,'" according to the latest ruling in the case.

This document contains the Trade Representative's interpretation of the phrase "in like circumstances," a key element of the U.S.'s most-favored nation trade agreements.

The government argued that disclosing Document 1 would limit its ability to "assert a broader or narrower view of the meaning and applicability" of the phrase in current and future trade agreements, thus leaving the U.S. open to "adverse international arbitration decisions."

Though a federal judge sided with the nonprofit, a three-judge panel of the D.C. Circuit reversed Friday.

"We do not see why, in the absence of a definition in the governing agreement, it is so implausible that an arbitrator would look to the white paper as evidence of the United States' interpretation of the phrase - even if that document is not binding on the United States," Judge Raymond Randolph wrote for the three-judge panel.

The government argued that releasing its interpretation of "in like circumstances," would prevent U.S. negotiators from "negotiating up" to Document 1's position or from accepting an interpretation substantially similar, but not identical, to that in Document 1.

"It is important to keep in mind that the Trade Representative was expressing concerns about the United States' flexibility in future negotiations not necessarily with the governments that participated in the Free Trade Agreement of the Americas negotiations, but with governments that did not take part in those negotiations," Randolph wrote. "Absent disclosure of the white paper, these other governments would not know the position the United States had taken in the earlier negotiations." (Italics in original.)

The court concluded: "Whether - or to what extent - this reduced flexibility might affect the ability of the United States to negotiate future trade agreements is not for us to speculate. The government has determined that it would 'damage [the] ability of the United States to conclude future trade agreements on favorable terms.' That determination has the force of history behind it. It echoes what George Washington wrote more than two centuries ago."

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