SECRECY NEWS
from the FAS Project on Government Secrecy
May 15, 2001

UNPUBLISHED COURT DECISIONS CHALLENGED

The American judicial system is becoming increasingly unpredictable due to the widespread practice of withholding appellate court decisions from publication. Because court rulings cannot be cited as precedent unless they are published, critics say that unpublished decisions undermine judicial consistency, erode litigants' expectation of equal protection under the law and encourage ad hoc rulings by judges.

Thirty years ago, all decisions were published and could be cited as precedent. In the US Court of Appeals today, 85% of all decisions are said to be unpublished following a slow, steady mutation of judicial practice under the pressure of increased litigation.

The problem was highlighted by a peculiar May 4 ruling in the US Court of Appeals for the Ninth Circuit.

The Court was considering whether to impose sanctions on an attorney because she cited an unpublished opinion in a brief, in defiance of Court rules. In the end, the Court decided not to impose the sanctions but warned that this was a unique case and others might not be so lucky.

The underlying issue in the case, it might be noted, was whether or not the police are required to give warning to a suspect before unleashing a police dog. That serious question remains legally unsettled because the Court's decision on that point remains unpublished and therefore cannot serve as precedent or as a reliable basis for police procedure.

In what might be a first, the Ninth Circuit cited the U.S. Supreme Court's widely reviled decision in Gore v. Bush -- which terminated the 2000 election -- to justify its insistence that its ruling applied only to the present case. (The Supreme Court had stated there that "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.")

See the text of the May 4 Ninth Circuit ruling here:

Michael Schmier, who was a candidate for Attorney General in California in 1998, was prevented by the California Supreme Court from including discussion of this issue in his candidate statement that was mailed to California voters. His statement, which was entirely blanked out in the voter handbook, included these remarks:

Schmier's brother, attorney Ken Schmier, leads a burgeoning campaign to reverse the trend toward nonpublication of judicial decisions. He has assembled a variety of resources on this issue which are available here:

1968 NUCLEAR ACCIDENT DOCUMENTED

The publication of the State Department's Foreign Relations of the United States (FRUS) volume on Western Europe last month was the culmination of two fierce battles over declassification. One concerned the disclosure of CIA covert action in Italy in the 1960s, as discussed in Secrecy News, 05/02/01.

The other declassification dispute was over publication of documents concerning the crash of a U.S. B-52 bomber carrying four thermonuclear bombs near Thule Air Force Base in Greenland in 1968. Though there was no nuclear explosion, the conventional high explosive in the bombs was detonated, scattering radioactive debris.

All of this is fairly well documented in the published literature.

Nevertheless, the State Department and the Defense Department "fought like blazes not to release the documents on the Thule crash," according to a historian involved in the process. The State Department was apparently concerned about possible adverse diplomatic reaction from Denmark. The Defense Department habitually claims that the locations of nuclear weapons must be classified, even when the information is decades old.

The agencies' opposition to publication of documents on the Thule accident was overcome only when it was discovered that the documents were already available in the public domain! "Eventually we found most of them already declassified at NARA or the LBJ Library," the historian said. Ironically, other documents were found in a Danish government publication.

The entire FRUS volume, including the contested Thule records (see documents 1 through 24), is posted here:

ANOTHER INTELLIGENCE REVIEW ORDERED

On May 9, President Bush ordered yet another review of the U.S. intelligence bureaucracy. The President instructed DCI George Tenet to convene two panels, including one comprised of non-governmental experts, to assess the state of U.S. intelligence and to recommend appropriate changes.

There is no reason to expect much from the latest review. George Tenet, who has sworn under oath that disclosure of the aggregate intelligence budget number could damage U.S. national security, is unlikely to be the instrument of fresh thinking or fundamental reform.

But fresh thinking and fundamental reform are just what is needed, according to Gregory F. Treverton, author of the new book Reshaping National Intelligence for an Age of Information (Cambridge University Press, 2001).

The world of 2010, Treverton writes, "will require intelligence to be dispersed, not concentrated; open to a variety of sources, not limited to secrets; sharing its information and analyses with a variety of would-be coalition partners, including foreigners and people outside government, not guarding its 'secrets' tightly."

Much of the book recounts the intelligence debates and debacles of the 1990s and will be familiar to many readers. Yet Treverton, former vice chairman of the National Intelligence Council, leavens his account of recent history with some startling anecdotes. For example:

Treverton proposes a practical agenda including improved exploitation of open sources and increased utilization of outside experts. Above all, he says repeatedly, "the margin of what is debated publicly needs to be dramatically widened." Intelligence needs to "make its case publicly."

That view is not widely shared inside the bureaucracy. According to the Washington Post, the latest intelligence review was mandated by President Bush's National Security Presidential Directive 5. An NSC staff member said that neither the Directive nor a fact sheet describing its contents would be released.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists Project on Government Secrecy.

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