Updated 4:43 p.m.
A little more than two years ago, a former intelligence officer sued the CIA and other agencies over the government's effort to shield from the public certain details in his memoir about the war in Afghanistan.
As the legal fight over the scope of the redactions in the book "Operation Dark Heart" inches along, the federal trial judge in Washington overseeing the dispute appears increasingly concerned about—and impatient with—positions the U.S. Justice Department is taking.
DOJ lawyer Scott Risner told the judge at a hearing yesterday that the author, Anthony Shaffer, a former Defense Intelligence Agency officer, has no right at this point in the litigation to present classified information, by way of an affidavit, to challenge whether the government is too broadly asserting that information in the book is classified.
U.S. District Judge Rosemary Collyer said she would not allow Shaffer "to be muzzled unfairly" through silence. "You have made your position," the judge said to Risner during one exchange. Over the objection of the government, the judge said she wants to receive an affidavit from Shaffer. No redactions.
The government's overarching concern, Risner said, is the protection of classified information. The claims in Shaffer's case "raise constitutional questions concerning the plaintiff’s rights under the First Amendment and the executive’s authority and responsibility to protect classified information," Risner said in court papers filed in January.
To oblige the judge's request, Shaffer will have to write a declaration on his home computer—far from ideal in the eyes of the government considering the potential that he could disclose classified information. But DOJ recently hasn’t expressed any eagerness to provide a secure computer to Shaffer.
"You must admit, this is a strange piece of litigation," Collyer told Risner during one exchange. Risner wasn't able to answer before the judge said: "I won't make you admit it."
Prohibiting Shaffer from submitting an affidavit, Collyer said, would give the government a litigation advantage. "You can see clearly because you only have to see your side," the judge said at yesterday's hearing.
In January, Collyer said at a hearing that the government is advocating positions that would render the case "silent litigation."
After the hour-long hearing, Shaffer's attorney, Mark Zaid, a long-time national security litigator in Washington, said the failure of the government to provide a secure computer would demonstrate "that ensuring a litigation advantage is more important than properly protecting 'classified' information."
The government, Zaid said in an email, "continues to do whatever it can to prevent Shaffer from exercising his First Amendment rights and challenge the classified redactions." At the same time, he said, the government "does nothing to enforce the law against numerous authors who, unlike Shaffer, declined to submit their manuscripts for prepublication review."
"The stark hypocrisy and message that sends is damning to any claim that national security is truly important to this administration," Zaid said.
Collyer gave DOJ until February 27 to decide whether it will allow Shaffer to use a secure government computer to prepare his declaration.