from the FAS Project on Government Secrecy
Volume 2004, Issue No. 32
April 1, 2004


A lawsuit that sought to challenge Bush Administration restrictions on public access to Presidential records from past Administrations was dismissed by a federal court this week.

In November 2001, President Bush issued an executive order that significantly increased the authority of current and former presidents to block public requests for unclassified records from prior administrations.

In one of its more extravagant formulations, the Bush order asserted a hereditary right of executive privilege by which the heirs of a deceased or disabled former president could assert the privilege on his behalf.

The executive order (EO 13233) was challenged by a broad coalition of historians and public interest researchers led by Scott Nelson of the Public Citizen Litigation Group.

But their complaint was not "justiciable," a court ruled, concluding that the plaintiffs did not have standing and could not demonstrate imminent injury.

Fundamentally, the ruling suggests that the courts cannot serve as an effective venue in which to challenge official secrecy policies, no matter how egregious they may be.

See the March 28 ruling by Judge Colleen Kollar-Kotelly here:


Another lawsuit that was deemed "non-justiciable" this week concerned the U.S. role in the attempted coup in Chile in 1970 in which Chilean commander-in-chief Gen. Rene Schneider was shot in an attempted kidnapping.

Schneider's children filed suit against the United States and against former national security adviser Henry Kissinger in particular, seeking to hold them responsible for Schneider's death.

The historical and legal background to the case was discussed in a 30 page opinion by Judge Rosemary M. Collyer, who granted the defendant's motion to dismiss the matter. See the March 30 ruling here:


Was United States v. Reynolds, the 1953 Supreme Court decision that affirmed the government's "state secrets" privilege, decided in error based on fraudulent testimony from Air Force officials?

Litigation over that question continues in federal district court in Pennsylvania.

In the latest installment in the case, the government argued March 19 on technical grounds that no fraud had been committed and that the complaint should be dismissed:

The plaintiffs, who include family members of the original 1953 plaintiff in the case, asked the court on March 25 to allow oral argument:


The Senate ratified a measure that would strengthen the International Atomic Energy Agency's authority to inspect suspected nuclear weapons sites.

The so-called Additional Protocol "allows the IAEA to inspect non-declared facilities, if the organization believes that illegal nuclear activities may be taking place there," said Senator Joe Biden. The United States retains special rights to a "national security exclusion" that can be used to block IAEA inspection of U.S. facilities, he noted.

See the March 31 Senate floor debate on the IAEA Additional Protocol here:


A staff member of the House Permanent Select Committee on Intelligence last year drafted legislation that apparently would have channeled hundreds of thousands of dollars to an advocacy group that he was working to establish, according to a jaw-dropping story in the Capitol Hill newspaper Roll Call.

That particular provision was blocked by the Senate in conference. But the House committee staffer, John Stopher, went on to help create and raise funds for the United States Geospatial Intelligence Foundation, an advocacy organization that sought $60,000 membership fees from industry sponsors.

The story, reported by Damon Chappie, represents an unusually crass instance of bias and conflict of interest among intelligence committee staff members.

A more commonplace concern has to do with the fact that a significant fraction of committee staffers are former employees of the intelligence agencies they oversee or perhaps, like the current Director of Central Intelligence, they hope to be future employees.

Either way, their capacity for independent criticism or, when necessary, confrontation is likely to be diminished.

Details of the Stopher affair are recounted in "Intel Aide's Ties Draw Scrutiny" by Damon Chappie, Roll Call, April 1, posted with permission here:


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

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