A U.S. Justice Department lawyer faced sharp questions today from a Washington judge over the government effort to restrict an author's ability to challenge whether certain details in his book about the Afghan war should remain secret.
Retired Army Lt. Col. Anthony Shaffer, who penned a memoir titled "Operation Dark Heart," is pursuing a First Amendment case in Washington's federal trial court over the government's insistence that passages in the book contain classified information that cannot be publicly disclosed. In late 2010, Shaffer sued the CIA, the Defense Department and the Defense Intelligence Agency.
Shaffer's case presents thorny legal issues regarding the control and disclosure of classified information in civil litigation. U.S. District Judge Rosemary Collyer, at a hearing in the case today to discuss procedural issues, expressed concern that DOJ's litigation stance will hinder Shaffer's ability to present his contentions by restricting the information he's allowed to tell the court.
Scott Risner of the DOJ's Civil Division argued today that Collyer should not allow Shaffer to submit information to the court on his own. Instead, Risner insisted, Collyer should rely on the government's ex parte submissions in support of keeping select passages in the book blacked out.
Shaffer, represented by Mark Zaid, a national security lawyer in Washington, has already made his argument, at the administrative level, against the redaction of information, Risner said.
Collyer seemed incredulous. "How's he supposed to get a word in edge-wise?" the judge asked Risner during one exchange.
Collyer and Risner spent several minutes today debating the merits of the government's position. Collyer at times raised her voice, expressing her disinclination to "sit back" and allow the government to provide secret declarations, submitted just to her chambers, while Shaffer remains mute.
"You want this to be silent litigation," Collyer said. The judge, later, described the DOJ argument as the erection of a "wall of classification."
Collyer didn't make any formal ruling today on how Shaffer and his lawyer will be allowed to present information to the court to challenge the government classification assertions. The judge is planning to meet again with the lawyers in early February.
Shaffer was an officer with the Defense Intelligence Agency from 1995 to 2006 before he joined the U.S. Army Reserve and retired as a lieutenant colonel. His book, published in 2010 with redactions, is an "eyewitness account of the 2003 'tipping point' of the war in Afghanistan," as Collyer described the work last year.
Shaffer ultimately wants to publish an unredacted version of his book devoid of any classified information. "We don't want any classified information out there," Zaid said in court today.
The Defense Department recently completed its administrative security review of Shaffer's book, court filings show. Of the 433 passages that the government said contained classified information, 198 of those have details that have been "properly declassified."
Risner said in court papers that "there is no dispute that the plaintiff has no right to publish classified information, and thus the sole issue for the court’s determination is whether the information in those passages is properly classified."
In one of the early rulings in the case, Collyer sided with Shaffer in finding that he has legal standing to pursue his First Amendment claims. DOJ lawyers had tried to convince the judge that Shaffer had sold control of the book to his publisher, St. Martin's Press.
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