A Corollary to the Totten Doctrine: Wilson v. CIA

As previously discussed on the blog, the Tottendoctrine requires dismissal of a case when “the very subject-matter” of thecase is a state secret.  Today’s New York Times reports that the Second Circuit has dismissedValerie Wilson’s suit against the Central Intelligence Agency, in which sheclaimed that the Agency violated her free-speech rights when it requiredredaction of her 2007 book, Fair Game.  

As reported in the Times, the Second Circuit’s reasoning isbased on a contractual override of Wilson’s 1st Amendment rights: “WhenMs. Wilson elected to serve with the C.I.A., she accepted a life-longrestriction on her ability to disclose classified and classifiableinformation.”  The problem is that at least some of the information inquestion had already been leaked to the public by the government and in any case was made public and widelyreported on.  No matter, says thecourt.  The information is stillclassified, and she is still bound, even if governmental breaches “may warrantinvestigation.”

Although the entire panel votedto dismiss, Judge Katzmann concurred:

I agree with the majority that Ms. Wilson’s pre-2002 dates of service,if any, were originally properly classified by the CIA, have never beenofficially declassified, and were never officially disclosed by the CIA.  Therefore, I also agree that this Courthas no power to free Ms. Wilson from the secrecy agreement that she signed uponcommencement of her employment with the CIA.  At the same time, I write to observe that the CIA’s positionin this litigation blinks reality in light of the unique facts of this case andthe policies behind the doctrines at issue here.  Indeed, the CIA’s litigation posture may very well becounterproductive to its purposes.

Judge Katzmann proceeds toexplain that the CIA’s justification for the redaction was that the dates ofMs. Wilson’s service ought not to be revealed.  However, those dates had already been revealed in aCIA-authored document, submitted on CIA letterhead and entered in the publicrecord as part the Congressional Record in 2006. Judge Katzmann thus argued that while, as a legal matter, the court iswithout power to order the CIA to permit the release of classified information,whether or not it was already in the public domain, as a matter of policy, itis harmful to the reputation of the CIA for it to disseminate information and thenalso attempt to suppress it. 

The opinion can be found here.

[Jeremy Telman]