Original story at: Legal Times
David Sadler For Congress 12th CD/Illinois

Quiet End
Citing national secrets, DOJ convinces judge to toss private suit against one-time spy suspect

By Siobhan Roth
Legal Times
February 19, 2002

Less than two years ago, Wen Ho Lee had to fend off Department of Justice lawyers who wanted to put him behind bars for allegedly spying for China.

Last week, Lee had the Justice Department to thank for making his latest legal headache disappear.

Lee was sued for defamation in September 2000 by Notra Trulock III, the former Department of Energy official who supervised the administrative inquiry that led to Lee's conviction for mishandling classified information.

The trial was scheduled for Feb. 19. But last week, Chief Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia threw out the case. The reason: The government claimed that state secrets would be revealed if the case were allowed to proceed.

The Trulock case is only the latest example of the government's long history of elbowing its way into private suits in which it is not a party, using what is known as the state secrets privilege. Under the doctrine, the federal government may intervene in a civil suit between private litigants if classified information is likely to be revealed in the course of the trial. If the information encompasses state secrets and the case cannot proceed without revealing them, the government can ask the court to dismiss the case, as it did in the Trulock matter.

There is no statute governing the privilege. A Supreme Court case, United States v. Reynolds, brought in 1952 by the widows of three civilians killed in a military plane crash, set the standard for such cases. The government declined to say how often it asserts the privilege. But national security experts say the government makes claims every year.

The government could well have valid concerns for the integrity of state secrets in Trulock v. Lee. Questions are being raised nonetheless, given the history of the espionage investigation of Lee, the former nuclear weapons engineer.

" Whatever concerns the government may have about national security, it probably has greater concerns over the embarrassment it could suffer, " notes George Washington University Law School professor Jonathan Turley, who wrote a 2000 law review article on the state secrets privilege. " For the government, this is a very unwelcome lawsuit. Wen Ho Lee simply reminds the public of the series of blunders committed by the FBI at a time when the FBI is trying to put forward a new image. A resurrecting of Wen Ho Lee could not come at a worse time. "

According to papers Lee filed in the defamation suit, the sensitive information at issue is mostly the same information Lee was about to present in his defense in the espionage case when the government came forward with a plea bargain.

Trulock's lawyers say he will appeal, and that the government he served has " abandoned " him.

" We think the government's intervention is outrageous and fundamentally dishonest, " says Thomas Fitton, president of Judicial Watch, the D.C.-based nonprofit group representing Trulock in the case. " The government had an interest in destroying Mr. Trulock, and that's why it took the action here. "

Trulock served as director of the Offices of Intelligence and Counterintelligence for the Energy Department from 1994 to 1998.

Justice Department officials declined to comment on the case and the privilege. One of Lee's attorneys, C. Kevin Marshall of the D.C. office of Sidley Austin Brown & Wood, says his client is " happy the case is finally over, " adding, " The state secrets basis for dismissing the case was one of three that we had made in our summary judgment motions and we were happy to win on any of those bases. "

Private Suit, Public Interests

The government first got involved in Trulock's suit against Lee in late May, eight months after Trulock filed his complaint. Along with a " statement of interest " noting that there appeared to be classified matters involved in the case, the government filed a motion for a protective order on that information. The order, as well as subsequent protective orders, were granted in part.

From then on, the government received copies of every filing and agents of the Federal Bureau of Investigation were present for almost every deposition. For example, three FBI agents and one Energy Department classification specialist attended Lee's deposition.

Lee had two co-defendants in the defamation case: Charles Washington, acting counterintelligence director at the Energy Department from December 1995 through July 1996, and Robert Vrooman, a former Central Intelligence Agency employee who worked on counterintelligence matters at the Los Alamos lab, where Lee was employed. Each submitted declarations in the 2000 espionage case stating that Trulock focused his investigation on Lee because Lee, an American citizen, is ethnically Chinese. The publication of those declarations in news articles and on Wen Ho Lee's Web site, as well as similar statements they made outside the court proceedings, were at the heart of Trulock's defamation case.

Following the close of discovery in December 2001, the government filed a list of information it wanted protected under the state secrets privilege.

That's where Chief Judge Hilton came in. Although federal officials and agencies determine whether a piece of information is classified, it is the judge who decides if it is relevant to a particular case. In civil cases such as Trulock's, the judge determines whether the classified information is " privileged " state secrets and therefore not available as evidence, says Kate Martin, director of the Center for National Security Studies, a D.C.-based civil liberties organization.

The procedure for invoking the state secrets privilege requires the heads of the pertinent agencies to file affidavits attesting to the sensitivity of the information. In the Trulock case, Jeffrey Zarkin of the Energy Department and William McNair of the CIA filed classified declarations. CIA Director George Tenet filed the formal claim of state secrets privilege, as well as a declaration.

" Judges tend to accept the claims of harm and the claims of privilege, " Martin says. " That of course is just the first inquiry. The second inquiry is whether the case can proceed without the privileged information. "

The defendants said they could not make their case without the information. Hilton dismissed the case Feb. 12.

But Trulock's lawyers say the state secrets claim was bogus.

" They know as well as we, that there would have been no national security issues implicated or let out in any trial, " Fitton says. " It was a simple defamation case. They raised no arguments that had merit, especially because [the government] had participated in the case so thoroughly. "

Lee is not the only civil suit defendant to become the unlikely beneficiary of the U.S. government's intervention. In 1977, scientist James Fitzgerald sued publishing company Penthouse International Inc. for printing an article alleging that Fitzgerald was involved in selling top secret weapons information. Fitzgerald sued for defamation. At the height of the Justice Department's anti-porn crusade, the department got the case dismissed using the state secrets privilege. The government relied heavily on a 1985 opinion by the U.S. Court of Appeals for the 4th Circuit in Fitzgerald v. Penthouse to support its motion to dismiss the Trulock case.

Trulock has another case pending in the Eastern District of Virginia. He is suing former FBI Director Louis Freeh, claiming that the bureau raided his house in retaliation for an article Trulock wrote critical of the agency and the Clinton administration.

Lee, too, has a suit pending against the government. He claims that in the course of the espionage investigation the Justice Department, the FBI, and the Energy Department violated his privacy. The case is scheduled for a June trial before Senior Judge Thomas Penfield Jackson in D.C. federal court.