Blocking disclosure in Restis v. UANI: Who’s ever heard of national security?

In this narrative, the government’s intervention, and probably the court's decision, stands for unlimited government power and a sense that the state is functioning as "big brother."

By
March 25, 2015 04:51
Iran

Iranian flag. (photo credit: REUTERS)

National security - such a cliché. At least, that’s how it’s been treated by many covering the Restis v. UANI case.

And one can understand the bewilderment of civil rights groups at what was and was not said in the New York federal court decision to block shipping magnate Victor Restis’s defamation case against UANI, based on a US government request that said the case endangered state secrets.

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On what was said: The court - keeping mum about its reasons based on secret information the US shared with it - allowed the state to block a case against a private party, UANI, without explaining why, or even explaining which US agency wanted the case blocked.

Critics of the government’s motion have said that permitting the state to block a defamation case against a private party might enable the US to illegally use private entities to campaign against or intimidate others. More worryingly, they say, this could enable the use of illegal methods that the state itself could not use. The state could then protect those private entities by invoking its privilege of blocking cases against them in the interests of maintaining national security secrets.

In this narrative, the government’s intervention, and probably the court’s decision, stands for unlimited government power and a sense that the state is functioning as “big brother.”

Americans have justifiably become more paranoid about government interventions of this sort since the National Security Agency and CIA overstepped their boundaries in reviewing citizens’ email meta-data and interrogating detainees.

Other critics have noted that UANI is so strongly opposed to a nuclear Iran that it has been critical of many aspects of the US negotiations with Tehran.

Some of these critics have tried to paint Restis as a humble humanitarian bringing food to Iranians under sanctions, and they have portrayed UANI as unfairly picking on him as it tries to sabotage US policy on reaching an agreement.

Were these indeed the motives for the US intervention and Judge Edgardo Ramos’s order to dismiss the case based on national security interests? It is true that many would have liked the Obama administration to roll back the Bush administration’s veil of national security secrets more than it did.

But if the Obama administration views UANI’s existence and actions merely as an impediment to the keystone of its foreign policy - an agreement with Iran - and not as legitimately endangering national security, why would it intervene? Why would it bend over backward to cover a private NGO and thereby anger its Democratic base, which vehemently dislikes the state-secrets privilege? Also, critics have slammed the special courts that approve NSA electronic search warrants, and the Guantanamo military courts that directly or indirectly facilitate extended administrative detention of prisoners, as too close to and influenced by the government.

But Ramos is a full, independent and regular federal court district judge who - at least prior to viewing the intelligence at stake - even expressed skepticism at the state’s desire to intervene.

Will critics still say he’s been hoodwinked? That brings us to what the court did not say – an angle that, perplexingly, few seem interested in considering.

Sources familiar with such national security issues have discussed a number of hypothetical scenarios with The Jerusalem Post regarding how the state-secrets privilege could be relevant to the case.

One paradigm would be the A. Q. Khan model – the busting of the worst clandestine nuclear proliferation network in decades.

In the Khan case, the government delayed cases and prosecutions, both before and after Khan was busted. They intentionally left parts of the network in play until they had more comprehensively uncovered it and could net more of it in a sting operation.

They even likely opposed prosecution of certain Khan associates after his arrest, which many have presumed was to protect those Khan associates who had become CIA informers.

UANI’s campaign against Restis’s doing business with Iran could be based on similar intelligence and a desire to protect similar sources or undercover informants.

Whether UANI could have gotten a tip from or given a tip to US intelligence, the bottom- line is that exposing the basis of the group’s accusations against Restis’s Iran business dealings might hamper continued intelligence-gathering or jeopardize intelligence assets.

In another hypothetical, UANI could have gotten a tip from or tipped off foreign intelligence agencies of US allies, or been a conduit of intelligence- sharing with US intelligence allies.

Sometimes getting intelligence in a closed country like Iran requires unconventional models of cooperation, and it’s possible that revealing the basis of UANI’s accusations against Restis would unravel those circles.

Some have criticized the idea that the US might use an NGO like UANI to accomplish national security goals. Yet some of the best intelligence successes, including the operation to undermine Iran’s nuclear weapons program with sabotaged parts, have been accomplished by cooperating private German companies.

For that reason, Ramos noted that this was not, as many claim, the first time the US had asked to exercise the secrecy privilege on behalf of a private party like UANI, but the fifth time; he cited four prior cases.

The court also specifically said that even naming the US agency that had asked to block the case could jeopardize national security.

This could certainly support the theory of foreign intelligence allies being involved, since revealing which foreign countries the US is cooperating with could jeopardize that cooperation.

All of this is speculative, of course, and maybe people really will look back on this case as another win for “big brother,” the poking of another hole in freedom and transparency.

Then again, there do seem to be terrorists in the world at present – ISIS, Iran’s Revolutionary Guard Corps, Hezbollah, Hamas and a range of others – so maybe the government and the court actually were trying to protect national security.


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