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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2002 Decided February 25, 2003
No. 02-5234
DANNY B. STILLMAN,
APPELLEE
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01342)
Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Roscoe C. Howard, Jr., U.S. Attorney, Gregory G. Katsas,
Deputy Assistant Attorney General, U.S. Department of Jus-
tice, and Thomas M. Bondy and Douglas Hallward–Driemei-
er, Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Mark S. Zaid argued the cause and filed the brief for
appellee.
Mark H. Lynch argued the cause for amici curiae Ameri-
can Civil Liberties Union of the National Capital Area and
Public Citizen, in support of appellee. With him on the brief
were Arthur B. Spitzer, Stephen M. Block, Michael Tankers-
ley, and Scott L. Nelson.
Roy W. Krieger was on the brief for amici curiae M.K., et
al., in support of appellee.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Government appeals an order
of the district court granting Danny Stillman’s attorney ac-
cess to a manuscript written by Stillman and currently under
classification review by the Department of Defense (DOD)
and the Central Intelligence Agency (CIA). We hold that the
district court abused its discretion by deciding unnecessarily
the constitutional question whether Stillman has a right un-
der the First Amendment for his attorney to be given access
to the manuscript. Accordingly, we reverse and remand this
case to the district court for further proceedings.
I. Background
Stillman, a former employee of the Los Alamos National
Laboratory, wrote a book about China’s nuclear weapons
program. As a condition of his employment at Los Alamos,
Stillman had signed several nondisclosure agreements that
required him to present the manuscript to the Government
for prepublication review in order to determine whether it
contained classified information. The Government informed
Stillman in October 2000 that the manuscript did contain
classified information and that it would not approve the
manuscript for publication.
Stillman then filed a lawsuit in the district court alleging
that various agencies, including the DOD and the CIA, had
3
violated his rights under the First Amendment to the Consti-
tution of the United States by refusing to authorize publica-
tion of his manuscript. Stillman’s counsel, Mark S. Zaid,
asked the Government to give him access both to the classi-
fied portions of the manuscript and to the Government’s
classified pleadings so he could challenge the classification
decision as incorrect. The Government denied Mr. Zaid
access on the ground that he did not ‘‘need to know’’ the
information, as required by Executive Order 12958, which
governs the classification and dissemination of national secu-
rity information. See 60 Fed. Reg. 19825 (Apr. 17, 1995),
reprinted at 50 U.S.C. § 435 (note). Mr. Zaid then filed a
motion to compel the Government to give him access to the
disputed materials.
The district court, in order to avoid determining the under-
lying classification issue, assumed for the purpose of the
motion to compel that information in the manuscript was
properly classified as ‘‘Secret.’’ That designation applies to
‘‘information, the unauthorized disclosure of which reasonably
could be expected to cause serious damage to the national
security that the original classification authority is able to
identify or describe.’’ Exec. Order 12958 § 1.3(a)(2).
Proceeding upon the assumption that the information in the
manuscript was properly classified ‘‘Secret,’’ the district court
held that denying Mr. Zaid access to the manuscript violated
Stillman’s rights under the First Amendment because that
denial was not narrowly drawn to serve the Government’s
concededly compelling interest in preserving national securi-
ty. (The district court dismissed as premature the motion to
compel with respect to the classified pleadings; the Govern-
ment had not yet filed any classified pleadings.) The district
court then ordered the Government to conduct the requisite
background check on Mr. Zaid in order to determine whether
he could be trusted with access to the classified manuscript.
The Government did so and found that Mr. Zaid was trust-
worthy. The Government then appealed the decision of the
district court.
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II. Analysis
The district court abused its discretion by unnecessarily
deciding that a plaintiff has a first amendment right for his
attorney to receive access to classified information where
such access is needed to assist the court in resolving the
plaintiff’s challenge to the classification. ‘‘A fundamental and
longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of
the necessity of deciding them.’’ Lyng v. Northwest Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988); see
United States v. Rostenkowski, 59 F.3d 1291, 1302–03 (D.C.
Cir. 1995). In this case the district court would never have to
reach the constitutional question if it could determine without
the aid of plaintiff’s counsel whether the disputed portions of
the manuscript were properly classified.
If the Government classified the information properly, then
Stillman simply has no first amendment right to publish it.
As the Supreme Court said in Snepp v. United States, 444
U.S. 507, 510 n.3 (1980) (citations omitted):
When Snepp accepted employment with the CIA, he
voluntarily signed the agreement that expressly obligat-
ed him to submit any proposed publication for prior
reviewTTTT Moreover, this Court’s cases make clear
that – even in the absence of an express agreement – the
CIA could have acted to protect substantial government
interests by imposing reasonable restrictions on employ-
ee activities that in other contexts might be protected by
the First Amendment. The Government has a compel-
ling interest in protecting both the secrecy of information
important to our national security and the appearance of
confidentiality so essential to the effective operation of
our foreign intelligence service. The agreement that
Snepp signed is a reasonable means for protecting this
vital interest.
If, on the other hand, the information was not classified
properly, then Stillman may publish the manuscript. In
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either of these cases the district court would not have to
resolve the question whether vindication of Stillman’s first
amendment rights requires giving his attorney access to a
currently classified manuscript when a court is in doubt about
the correctness of the classification. This is not to say that it
is necessarily easier for a court to evaluate a classification
decision than it is to resolve a constitutional question. Ease
of resolution is simply not the relevant criterion for determin-
ing the precedence of issues.
Precisely because it is often difficult for a court to review
the classification of national security information, ‘‘[w]e antici-
pate that in camera review of affidavits, followed if necessary
by further judicial inquiry, will be the norm.’’ McGehee v.
Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983). Here, however,
the district court did not wait to evaluate the pleadings and
affidavits to be submitted by the Government in defense of its
classification decision. Rather, the court plunged ahead to
resolve the constitutional question.
Therefore, we remand this case to the district court to
determine first whether it can resolve the classification ex
parte. The district court should first inspect the manuscript
and consider any pleadings and declarations filed by the
Government, as well as any materials filed by Stillman, who
describes himself an ‘‘expert in classification and declassifica-
tion.’’ The court should then determine whether it can,
consistent with the protection of Stillman’s first amendment
rights to speak and to publish, and with the appropriate
degree of deference owed to the Executive Branch concerning
classification decisions, resolve the classification issue without
the assistance of defense counsel. If not, then the court
should consider whether its need for such assistance out-
weighs the concomitant intrusion upon the Government’s
interest in national security. Only then should it decide
whether to enter an order granting Mr. Zaid access to the
manuscript and, if similarly necessary, to the Government’s
classified pleadings and affidavits. If the court enters such
an order, then the Government may appeal and we will have
to resolve the constitutional question.
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III. Conclusion
For the foregoing reasons, the order of the district court is
reversed and the case is remanded to that court for further
proceedings consistent with this opinion.
It is so ordered.