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A federal judge on June 10 rejected a bid by the Justice Department to block judicial review of its secret national security actions in a case involving a former government scientist’s attempt to publish a book and show the government’s blocked portions of it to his lawyer. The move by the government, one that civil rights lawyers have been complaining are routine coming from the Bush administration’s Justice Department, elicited strong words from the judge. “The government has asked this court to take the extraordinary step of insulating its actions from judicial review and from Constitutional challenge,” wrote federal Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia. “This Court will not allow the government to cloak its violations of plaintiff’s First Amendment rights in a blanket of national security.” Stillman v. Dept. of Defense, No. 01-1342 (D.D.C.) The opinion came on a motion in the suit against Danny Stillman, a retired nuclear scientist and chief of intelligence at the Los Alamos National Laboratory in New Mexico. The government sought to keep him from showing his lawyer parts of his book about China’s nuclear weapons program. As required by his employment contract, Stillman submitted his manuscript to the government for prepublication review of classified information in January 2000. Nine months later, the government responded by telling him he couldn’t publish a word of the 500-page document. Stillman’s attorney, Mark Zaid of Washington, D.C.’s Lobel, Novins & Lamont, said that two weeks after they filed a suit in June 2001 against the Department of Defense and the Central Intelligence Agency, the government declassified 80 percent of the manuscript. It has not spelled out the subject of the remaining 20 percent. A motion seeking to let Zaid review the manuscript argued that the denial violated Stillman’s rights to a reasonable preclearance process for his manuscript and to speak freely with his counsel. The government responded that Zaid does not have a need to know as specified in Executive Order 2958, which addresses classified national security information. Citing Article II of the Constitution, which governs separation of powers principles and Executive Order 12958, the government said the decision was not reviewable by the court and that, even if it were, national security interests prevented disclosure, which outweigh any First Amendment interest. “The implications of the arguments put forth by the government in this case are stunning,” Sullivan wrote. He said that if the government’s argument was right, the Pentagon Papers would not have been published and parts of the Freedom of Information Act would be unconstitutional. Mark Lynch, an attorney at Washington, D.C.’s Covington & Burling, who has been involved in First Amendment litigation, expressed surprise at the government’s arguments. “For 30 years,” he said, “since the prepublication review process has been in effect, since the time of the McGehee case in the early ’70s, there has been no dispute from the government that the author’s lawyer can have access, so long as the lawyer meets reasonable criteria for trustworthiness.” The court lent support to Stillman’s claim that the government was retaliating against him for asserting his First Amendment rights. In its papers, the government said it permits attorneys access to the classified material in administrative challenges but denies access to lawyers in suits. The judge said the practice “smacks of retaliation.” The Justice Department said the decision to appeal was under review.

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