A Missed Opportunity   

The Supreme Court backs away from a chance to clarify when national security trumps a FOIA request.

"The subtleties of the legal mind are equal to the emergency." -- Gilbert and Sullivan, "Iolanthe"

Supreme Court Chief Justice William Rehnquist attracted a lot of attention when he presided over President Clinton's impeachment trial last year, decked out in a judicial robe sporting golden stripes on the sleeves. It was reported that he got the idea after watching a performance of "Iolanthe," a Gilbert and Sullivan comic opera.

No one satirized the foibles of the law better than those two Victorian collaborators, William S. Gilbert and Arthur S. Sullivan. But a December high court decision comes close.

In 1994, Leslie Weatherhead, a Spokane, Washington, attorney, filed a Freedom of Information Act request with the Justice and State departments. He sought correspondence from the British Home Office to its American counterparts regarding the extradition of his client, Susan Croft, to stand trial for her part in a conspiracy to attempt to murder a U.S. attorney in Oregon.

At first, both agencies claimed they didn't have any letters. Then the Justice Department found one. It consulted with State, which, in turn, asked the British Home Office for its views on whether the letter should be turned over. It was no surprise when the land of the Official Secrets Act objected to its release. Justice refused to give a copy to Weatherhead, citing diplomatic concerns and a national security exemption to the FOIA.

Weatherhead filed suit in U.S. District Court in Spokane. The presiding judge, Fred Van Sickle, rejected the government's argument that diplomatic relations require all such communications from foreign countries to be treated as confidential. In March 1996, he said that, under Clinton's 1995 executive order on classification of documents, this type of correspondence could be withheld only if it could be shown that Great Britain expected the letter to be kept secret at the time it was written. The judge wasn't satisfied that the government had proven that releasing the letter would harm national security or damage international relations.

The federal agencies asked Van Sickle to agree to review the contested letter, in private. He did so, and in September 1996 he reversed himself. The only explanation he gave was that, "[w]hen the Court read the letter, it knew without hesitation or reservation that the letter could not be released."

Weatherhead appealed to the 9th U.S. Circuit Court of Appeals in San Francisco. In a 2-1 decision, the panel ruled in October 1998 that the letter should be disclosed. The opinion, written by Chief Judge Procter Hug Jr., rejected the government's claim that "longstanding custom and accepted practice" demanded that international exchanges dealing with extradition, even if they appear "innocuous," must be kept confidential. Having reviewed the letter, the majority of the panel found that disclosure could not reasonably be expected to harm national security.

The dissenting judge, Barry G. Silverman, fretted about the consequences if the judiciary substituted "its own geopolitical judgment for that of career diplomats."

The agencies appealed to the Supreme Court, which agreed to hear the case. The high court seemed poised to interpret the national security exemption to FOIA for the first time.

Then in late November, a few weeks before the scheduled oral argument, the State Department abruptly released the two-page letter that Weatherhead sought. It explained in a motion to the court that it had learned only a few days before that Weatherhead had received correspondence from a British consul in Seattle in 1994 that disclosed "much of the substance of the letter." It added that the British Home Office was now willing to release the letter, and State concurred.

Why the about-face? The government was terrified that the Supreme Court would uphold the 9th Circuit's ruling, thereby "chilling future confidential communications between the United States and the British government." It argued that, now that the letter was public, the case was moot, and the high court should vacate the appeals court's decision.

On December 3, in an 8-1 decision, the Supreme Court did just that. Only Justice Antonin Scalia dissented. No explanations were given. Never mind the why or wherefore: The court deferred to the executive branch's unsupported claim that to do otherwise would damage national security, even though release of the letter's substance years ago did no harm, as far as anyone can tell. As the last act in a five-year battle for access to government information, the ruling would have done Gilbert and Sullivan proud.