nationalsecuritylaw United States v. Slough (D.C. Cir. Apr. 22, 2011); Center for Int’l Env. L v. Office of the US Trade Rep. (D.D.C. Apr. 12, 2011)

1. United States v. Paul Slough et al. (D.C. Cir. Apr. 22, 2011)

This prosecution arises out of the shootings that occurred at Nisur Square, Baghdad, in 2007. A number of Blackwater employees were prosecuted in the incident, but the district court dismissed the indictment on the ground that it was tainted by misuse of information obtained under a grant of use immunity. Last week, in an opinion posted here, a DC Circuit panel (Williams, joined by Ginsburg and Garland) reversed and remanded for reconsideration.

2. Center for Int’l Environmental Law v. Office of the US Trade Rep. (D.D.C. Apr. 12, 2011)

In this 16-page opinion, Judge Roberts confronted a motion for summary judgment by the USTR in response to the plaintiff’s FOIA request for a document linked to the negotiations associated with the Free Trade Agreement of the Americas. The government argued that the national security exemption from FOIA, Exemption 1, applied to the document because there exists a non-disclosure agreement among the FTAA parties that applies to this particular document and breach of that agreement would “damage foreign relations by causing nations to adopt more rigid trade positions, resulting in less favorable trade terms for the United States.” (slip op. at 3) The government also cited the risk of trade or investment retaliation. (slip op. at 3) Citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007), Judge Roberts agreed that the government’s invocation of a national security concern is entitled to “substantial weight.” (slip op. at 6-7). Judge Roberts concluded, however:

“…while disclosure here would breach the understanding with the other participating governments, the claim that such a breach would harm national security is much less compelling than it was in Students Against Genocide, Krikorian, or Azmy, since the United States would be revealing its own position only, not that of any other country. USTR, therefore, has not shown it likely that disclosing document 1 would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential.”

Separately, USTR argued that disclosure would harm foreign relations interests in that the document contains the USTR understanding of a key phrase used in trade agreements, a point which USTR prefers to keep indeterminate in the eyes of other states and which USTR thinks could lead to negative consequences if known. Judge Roberts responded that this position is “inconsistent with USTR’s stated goal of maintaining the trust of its negotiating partners.” (slip op. at 13-14), and thus that:

“Although a court must defer to agency affidavits predicting harm to the national security, “[d]eference . . . does not mean acquiescence.” Larson v. Dep’t of State, Civil Action No. 02-1937 (PLF), 2005 WL 3276303, at *9 (D.D.C. Aug. 10, 2005). To the extent that judicial review must at least ensure that statements in agency affidavits are not “called into question by contradictory evidence in the record[,]” Halperin, 629 F.2d at 148, inconsistent predictions of harm from disclosure should not provide the basis for withholding a document. Such inconsistency is an indication of unreliability, and the agency affidavits will be shown no deference with respect to any justification for withholding that involves maintaining the trust of negotiating partners.” (slip op. at 14)

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