UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DANNY B. STILLMAN * * Plaintiff, * * v. * Civil Action No. 01-01342 (EGS) * DEPARTMENT OF ENERGY et al. * Washington, D.C. 20585 * * Defendants. * *********************************
I, MARK S. ZAID, pursuant to 28 U.S.C. § 1746, hereby declares as follows: DECLARATION OF MARK S. ZAID, ESQ.
1. I am a person over eighteen (18) years of age and competent to testify. I make this Declaration on personal knowledge and in support of the plaintiff's Motion for Partial Summary Judgment.
2. I am the attorney of record for plaintiff Danny B. Stillman ("Stillman"). I am admitted to practice law in the States of New York, Connecticut and the District of Columbia, as well as the D.C. Circuit and Fourth Circuit Court of Appeals, and the United States District Courts for the District of Columbia, Maryland, Eastern District of New York, Northern District of New York and the Southern District of New York. I specialize in litigating national security cases including those involving the First Amendment.
3. This is an action filed on June 18, 2001, against the defendants Department of Energy, Department of Defense, Defense Intelligence Agency, and Central Intelligence Agency for injunctive and declaratory relief pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the All Writs Act, 28 U.S.C. § 1651, the defendants' internal regulations and the First Amendment to the Constitution of the United States. The defendants unlawfully imposed a prior restraint upon Stillman for 19 months by wholly infringing upon his right to publish his manuscript "Inside China's Nuclear Weapons Program." Although approximately 85% of the manuscript has now been released, the defendants' First Amendment violations are no less serious because of the fewer pages involved and must be called into question.
4. I was retained by Stillman in March 2001, and immediately sought to contact representatives of the defendants in order to amicably negotiate a resolution to the dispute. Since my first contact with the defendants I have requested access to Stillman's manuscript in order to assist him with the classification challenges. Although I hold a SECRET level clearance through the DIA, as well as access on the SECRET level to certain CIA information, the defendants have continually refused to permit me to review the redacted version of the manuscript. The reason I have been given is that I do not possess a "need to know", even though I am the author's attorney and hold the same level clearance as that of the information that has been deemed classified.
5. In fact, this is not the first time I have represented a client through the prepublication review process. In 1996, I represented a CIA whistleblower, Patrick G. Eddington, who had authored a manuscript entitled Gassed in the Gulf: The Pentagon-CIA Cover-up of Gulf War Syndrome. As with Stillman's manuscript, the CIA had declared much of Eddington's manuscript to be classified. However, I executed a secrecy agreement and was permitted to review the manuscript, as well as participate in substantives discussions with CIA officials in order to arrive at accommodations on the language. Similarly, Eddington was also forced to initiate litigation against the CIA in order to create a change of opinion regarding certain CIA classification decisions. The book was finally published in 1997.
6. Every attempt I made at opening a dialogue with the DOE was completely rebuffed. Except for my initial telephone call, not one telephone call was returned. Not one e-mail received a response. Not one letter was answered. I sent DOE letters on the following dates: March 29, 2001, April 4, 2001, April 10, 2001, April 23, 2001 and May 16, 2001. See Exhibits "18-21". I even attempted to involve the Office of General Counsel, but to no avail.
7. My efforts with the DIA and DoD were slightly more successful. The DIA's General Counsel, William J. Allard, responded the same day that I contacted him. Unfortunately, his response was for me to contact the DoD. See Exhibit "22". Although he informed me that the DIA was "aware of the circumstances under which much of the information in the manuscript was acquired", which was in reference to my statement that I wanted to clarify the origins of the information, it became clear that, in fact, the government continued to labor under misimpressions regarding Stillman's relationship with the DOE and the purposes for his trips to China. See Exhibit "23".
8. I first contacted DoD by letter dated March 29, 2001, in which I wrote to Henry McIntyre, Director, DFOISR. I requested (1) an opportunity to meet with DoD officials, (2) the identification of the designated classification authority, (3) the classification categories DoD believes are at issue, (4) clarification of the grounds upon which DoD believes the information within the manuscript is owned by, produced by or for, or is under the control of the DoD or U.S. government, and (5) the authority under which DoD believes it may classify Stillman's manuscript. Additionally, McIntyre was notified that Stillman was never an employee of DOE, that DoD should permit me to review the manuscript and that DoD must ensure that dissemination of the manuscript is limited to those who are participating in the classification review only due to copyright and propriety interests. See Exhibit "24". By letter dated April 5, 2001, McIntyre, Director, DFOISR, notified me that he had received my letter and was soliciting comments from the classification authorities. See Exhibit "25".
9. By letter dated April 10, 2001, I again requested that a meeting with DoD officials occur no later than April 20, 2001, so that we could discuss the many legal issues surrounding the manuscript, particularly because:
The information was not obtained as a result of Mr. Stillman's employment or through his continuing access to classified information as per his arrangement with the Department of Energy ("DOE"). His foreign trips were not undertaken on the instructions or behest of the United States government. He was under absolutely no obligation to discuss what he saw or heard, or provide any reports to the government regarding his observations. That he did so voluntarily, much in the same way American businessmen did following trips to the Soviet Union in the 1950s, does not create in DoD or any other federal agency the legal authority to prevent the publication of Mr. Stillman's manuscript. The only obligation that does impact upon Mr. Stillman is that he submit his manuscript for review to the DOE (and perhaps the DoD if, in fact, he did execute a secrecy agreement with a DoD component; a fact that still requires clarification) to ensure that classified information obtained during his employment or provided to him as a continuing result of his access is not improperly released. He has fulfilled that responsibility.
See Exhibit "26". No meeting ever occurred, although McIntyre telephoned me on April 23, 2001 to generically discuss the manuscript. Although my efforts were thus far futile, I again contacted DoD by letter dated May 16, 2001, and again requested that a meeting with DoD officials occur no later than May 25, 2001. See Exhibit "27".10. By letter dated May 23, 2001, McIntyre, Director, FOISR, notified me that a meeting had been scheduled for May 24, 2001, for the representatives of the various involved agencies to discuss Stillman's manuscript. The government was then prepared to meet with me either in person or via telephone on May 25, 2001, or a later mutually acceptable date. See Exhibit "29". On May 25, 2001, I participated in a telephone conference call with McIntyre, Director, FOISR, and Stewart Aly, a DoD attorney. I was informed that DoD had completed its review and understands it cannot withhold the entire manuscript, but that DOE had not yet finished its review of the manuscript and required at least an additional three weeks. Furthermore, notwithstanding the DIA's earlier comments that it was aware of the origins of Stillman's manuscript, DoD was still under the impression that all nine of Stillman's trips to China involved the U.S. government. I responded that this was simply not true, and would further clarify the issue in writing.
11. By letter dated May 29, 2001, I clarified Stillman's relationship with the government on each of the trips he made to China. I again requested the DoD to indicate the government's legal position with respect to the nine trips. I conveyed the offer that Stillman would agree to wait a reasonable amount of time to permit the government to adjudicate the information regarding his first three visits to China, if it conceded it cannot preclude Stillman from publishing information obtained during trips four through nine. However, my offer was predicated on the government entering into good faith negotiations to substantively discuss how to ensure that as much information is declassified as possible regarding the first three trips. I requested a response of no later than June 1, 2001. See Exhibit "30".
12. By letter dated June 1, 2001, McIntyre, Director, DFOISR, reiterated that the DOE's line-by-line review of the manuscript will take at least three weeks. He noted that "[a]bsent a DOE position, we cannot provide a consolidated position on the status of the manuscript. In addition, we are attempting to determine Mr. Stillman's status on all his trips to China based on information available to our agencies. We are working diligently to complete these actions as quickly as possible, but until then we have no basis to establish the government's legal position or offer options for your client's consideration." See Exhibit "31".
13. By letter dated June 5, 2001, as a matter of professional courtesy, I notified the DoD (with copies sent to the DOE and DIA) that litigation would be initiated on or after June 18, 2001, unless all reviews had been completed and substantial segregable portions of the manuscript had been approved for release, particularly in light of the circumstances set forth in my letter dated May 29, 2001. Furthermore, I would not accept any delays regarding my access to the manuscript since I had been requesting such access since March 2001.
14. As a follow-up, by letter dated June 8, 2001, I requested that DoD identify the current classification level of the manuscript. See Exhibit "33". I wanted to ensure I did, in fact, possess the proper clearance level. By letter dated June 11, 2001, McIntyre, Director, DFOISR, informed me that the "Department of Defense reviewers have tentatively determined that the manuscript contains information that should be classified at the SECRET classification level. Although this office is affording the appropriate security safeguards, the manuscript has not been formally classified by a classification authority. The classification decision will not be final until such a formal determination is made at the end of our review. I cannot comment on the Energy Department's actions or determinations in this matter." See Exhibit "34". This letter thus confirmed that I possess the requisite clearance level to review the manuscript.
15. At the end of the business day on June 15, 2001, I received a letter from McIntyre, Director, DFOISR, informing me that a meeting of the reviewers from the relevant agencies was scheduled for June 19, 2001. He proposed that we meet sometime the week of June 25, 2001. See Exhibit "35". Since the government had basically ignored every request either my client or I had put before it up to this time, we had no faith in the government's invitation. Indeed, the defendants had specifically rebuffed the requirements I set forth in my letters dated May 29, 2001 and June 5, 2001, in order to avoid litigation. The delays had ensured long enough, and I reiterated our intention to file this case on or after June 18, 2001. See Exhibit "36".
16. This case was then filed against DOE, DoD, DIA and CIA on June 18, 2001. Media coverage was extensive. See Exhibit "28". Within days I was contacted by the Department of Justice and notified that a substantial portion of the manuscript would be released shortly. We agreed to withhold service of the Summons and Complaint in order to enter good faith substantive negotiations. Two weeks later the defendants released approximately 85% of the manuscript.
17. I continued to request the government to permit me access to Stillman's manuscript, particularly since we were about to supposedly enter substantive negotiations. I informed the DOJ of my security clearances and past experiences, but to no avail. I would not be permitted access. Within days Stillman had reached an accommodation with the DOE. Although DOE had delayed the review of Stillman's manuscript for months, after all that time it had a mere four minor changes that it was concerned about. There was not even a question that Stillman would agree to the changes. By letter dated July 11, 2001, DOE noted that "[w]hen these four changes have been made, all DOE classification concerns with the current version of the manuscript will have been resolved." See Exhibit "1".
18. I frequently corresponded with DOJ in order to resolve this dispute. See Exhibit "37". Despite my objections regarding the government's refusal to allow my participation, I agreed to allow my client to participate in one meeting with the government's representatives. The arrangements were that no counsel were to be present, and that the government representatives would be prepared to respond to any substantive discussions. This meant that if Stillman asked why a certain portion of his manuscript was redacted, he would be told the reason. And if he suggested alternative language or wanted to argue why the information was not classified, the government representative would have the authority to do so. Therefore, on July 19, 2001, Stillman participated in a conference call with representatives of the government. The details of the meeting are set forth in my client's accompanying declaration, but it was a complete waste of time due to the unwillingness of the government to engage in substantive discussions.
19. Since that date, the government has done nothing but speak much and do little. I have continued to request access to my client's manuscript as well as an explanation as to the government's position on the remaining withholdings. Either the government has refused to abide by my request or simply ignored it.
I do solemnly affirm under the penalties of perjury that the contents of the foregoing paper are true to the best of my knowledge.
Date: August 16, 2001
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Mark S. Zaid