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FAS Note: For related background, see "Author to Sue U.S. Over Book on China's Nuclear Advances" in the New York Times, June 18, 2001.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

[filed June 18, 2001]


DANNY B. STILLMAN		*
[address deleted]		*
				*
	Plaintiff,		*	
				*	
	v.			*
				*
DEPARTMENT OF DEFENSE		*
Washington, D.C. 20301		*
				*
	and			*
				*
DEFENSE INTELLIGENCE AGENCY	*
Washington, D.C.  20340		*
				*
	and			*
				*
DEPARTMENT OF ENERGY		*
Washington, D.C. 20585		*
				*
	and			*
				*
CENTRAL INTELLIGENCE AGENCY	*
Washington, D.C. 20505		*
				*	
	Defendants.		*
*********************************

COMPLAINT

Plaintiff Danny B. Stillman brings this action against defendants Department of Defense, Defense Intelligence Agency, Department of Energy and Central Intelligence Agency for injunctive and declaratory relief pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201, the Administrative Procedure Act, 5 U.S.C. 701 et seq., the All Writs Act, 28 U.S.C. 1651, the defendants' internal regulations and the First Amendment to the Constitution of the United States. The defendants have unlawfully imposed a prior restraint upon the plaintiff by wholly infringing his right to publish his manuscript "Inside China's Nuclear Weapons Program".

JURISDICTION

1. This Court has jurisdiction over this action pursuant to 5 U.S.C. 702 and 28 U.S.C. 1331.

VENUE

2. Venue is appropriate in the District under 5 U.S.C. 703 and 28 U.S.C. 1391.

PARTIES

3. Plaintiff Danny B. Stillman ("Stillman") is a former employee of the University of California's Los Alamos National Laboratory in Los Alamos ("LANL"), New Mexico. He resides in New Mexico.

4. Defendant Department of Defense ("DoD") is an agency as defined by 5 U.S.C. 701. It contributed to the decision that denied Stillman the right to publish his manuscript.

5. Defendant Defense Intelligence Agency ("DIA") is an agency as defined by 5 U.S.C. 701. It contributed to the decision that denied Stillman the right to publish his manuscript.

6. Defendant Department of Energy ("DOE") is an agency as defined by 5 U.S.C. 701. It contributed to the decision that denied Stillman the right to publish his manuscript.

7. Defendant Central Intelligence Agency ("CIA") is an agency as defined by 5 U.S.C. 701. It contributed to the decision that denied Stillman the right to publish his manuscript.

FACTS

8. Stillman worked at LANL for twenty-eight years, until he retired in 1993. During the time he worked at LANL, Stillman executed various secrecy agreements with agencies of the United States government. These agreements prevent Stillman for releasing classified information he obtains through the course of his employment without official authorization. It also requires him to submit any writings for prepublication review even following retirement.

9. Between Spring 1990 and Summer 1999, Stillman made nine trips to China. He visited nearly all of China's nuclear weapons facilities and bomb testing sites and participated in extensive discussions with Chinese scientists and government officials. While in China, Stillman recorded detailed histories in his personal notebook of the Chinese program that he was told about by top Chinese scientists and met with Chinese weapon designers. He was even openly provided with photographs of Chinese nuclear weapons facilities.

10. Like any journalist, student or experienced traveler, Stillman maintained a journal concerning his experiences in which he detailed what he saw and heard, and who he met. Stillman's travels were documented by the Washington Post on May 16, 2001, in its front page article The Man Inside China's Bomb Labs: U.S. Blocks Memoir of Scientist Who Gathered Trove of Information. A copy of the article is attached as Exhibit "1".

11. The first three trips occurred while Stillman was still an employee of the University of California at LANL. The trips were not undertaken at the behest of the United States government, nor were they requirements of his employment. The Chinese government was financially responsible for all expenses he incurred within China. The fourth, fifth and sixth trips occurred subsequent to Stillman's retirement from LANL. The only United States government involvement appears to be limited to an agency of the United States government voluntarily reimbursing Stillman for the costs of his travel to/from China after his return. No contractual arrangement existed between Stillman and the United States government, nor did this agency's willingness to later reimburse Stillman affect the existence of any of the trips or his likelihood of travel. The Chinese government again assumed financial responsibility for all expenses incurred within China. The final three trips had absolutely no United States government involvement. Stillman's funding for the trips was entirely provided by Stanford University.

12. After each trip to China, Stillman voluntarily met with a representative of a United States government agency and informed this individual on what he saw and heard in China. The use of Americans, particularly tourists or businessmen, to obtain information that United States government operatives cannot is commonplace within the intelligence community. As author Ronald Kessler documents in Inside The CIA (Pocket Books, 1992), for example, the CIA's Domestic Resources Division within its Directorate of Operations openly asks "Americans who travel overseas to report on what they see once they return. During the war in the Gulf, the domestic collection office obtained plans for Iraqi targets from American and other businessmen who had helped build them." Id. at 21. Even University professors are also often asked by the CIA to provide information concerning their travels. Id. at 22.

13. Based entirely on what he personally witnessed, heard or was openly given by the Chinese, using his journal as a guide, Stillman authored a manuscript approximately 506 pages in length detailing his nine visits to China.

Involvement Of Department of Energy

14. On or about January 12, 2000, a copy of Stillman's manuscript was hand-delivered to the DOE pursuant to the terms of his secrecy agreement requiring prepublication review of all written materials.

15. On April 11, 2000, Stillman met with Jeff Zarkin, Document Declassification Division, Office of Nuclear and National Security Information, DOE, at which time Zarkin presented the DOE's classification concerns and eleven recommendations for deletions or rewording. Every change that DOE recommended was incorporated into Stillman's manuscript.

16. By Memorandum dated April 27, 2000, Anton A. "Joe" Sinisgalli, Director, Document Declassification Division, Office of Nuclear and National Security Information, DOE, noted that the manuscript allegedly contains information "classified Secret Restricted Data (SRD) and Secret National Security Information (SNSI)." It was indicated that the DOE had not conducted a "meticulous line by line review of the manuscript, but rather have highlighted general areas of concern."

17. By Memorandum dated October 23, 2000, Roger K. Heusser, Acting Director, Office of Nuclear and National Security Information, DOE, noted that Stillman had resubmitted a copy of his manuscript by letter dated June 26, 2000, and had addressed DOE's classification concerns. Heusser misidentifies Stillman as a DOE employee and that all of the trips to China were made on governmentally-funded travel. He indicates that the DOE had agreed to respond to Stillman's manuscript on behalf of the DoD as well. The DoD had informed the DOE by Memorandum dated September 12, 2000, that it objected to the "public release of any part of the manuscript". Because of the DoD position, the DOE decided not to review the manuscript's revised pages since "our review of the revised pages will be of no use to Dr. Stillman."

18. By letter dated March 20, 2001, Stillman's counsel requested that the DOE permit him to review the manuscript, and that DOE identify any remaining interests or concerns it may have.

19. By letter dated March 29, 2001, Stillman's counsel requested that the DOE conduct a full review of the manuscript, identify the designated classification authority and the classification categories at issue, process this matter separate from that of any other interested federal agencies, and schedule a meeting at the earliest opportunity to discuss the manuscript. The DOE never responded to Stillman's requests, nor did they respond to several telephone messages left for Evelyn J. Self, the contact person within the Office of Nuclear and National Security Information.

20. By letter dated April 4, 2001, Stillman's counsel again requested an opportunity to meet with DOE officials. The DOE never responded.

21. Additional letters were sent to DOE on April 10, 2001, April 23, 2001 and May 16, 2001, the latter to the Acting General Counsel, attempting to seek cooperation from the DOE regarding the review of Stillman's manuscript. The DOE failed to respond to each and every attempt.

22. Upon information and belief, the DOE has failed to complete its review of Stillman's manuscript.

Involvement Of Defense Intelligence Agency

23. On or about January 5, 2000, a copy of Stillman's manuscript was hand-delivered to the DIA pursuant to the terms of his secrecy agreement requiring prepublication review of all written materials.

24. By letter dated June 2, 2000 (though not received until June 15, 2000), Charles W. Hoing, Public Affairs Office, DIA, notified Stillman that the review of his manuscript was still ongoing, that the DIA has discovered that the "manuscript's contents involves the equities of several organizations", that an "[i]nitial review by officials within the Office of the Secretary of Defense (OSD) identified a number of concerns resulting in a complete objection to publication of the manuscript", that "DIA's review involves a line-by-line assessment of the material in order to alleviate OSD concerns and to permit publication of as much information as possible", and that "some information in your manuscript if disclosed would cause damage to U.S. intelligence operations and U.S. national security." Finally, Hoing noted that he was "unable to offer a specific anticipated date for completion of the review, but significant progress is being made."

25. By letter dated June 7, 2000, Stillman wrote the DIA's Office of Public Affairs requesting information on how to appeal the long delay in reviewing his manuscript.

26. By letter dated June 16, 2000, Betsy K. Scrivner, Chief, Public Affairs, DIA, informed Stillman that his manuscript has "NOT been denied for publication." She also noted that it was "premature to bring an appeal right now."

27. By letter dated June 25, 2000, Stillman notified Scrivner that he had been informed by Senator Domenici's office that the DIA review will be completed no later than the end of July 2000.

28. By e-mail dated August 2, 2000, Hoing notified Stillman that DIA had completed its review but was required to staff the review through the Department of Defense Directorate for Freedom of Information and Security Review ("DFOISR").

29. By letter dated August 31, 2000, Laurie S. Kelly, Chief Public Affairs, DIA, notified Stillman that "[d]ue to the manuscript's content and the significant extent of Department of Defense (DoD) equities beyond the purview of DIA, DFOISR determined it necessary to take responsibility for the review of the manuscript. The review process is not being delayed, but DFOISR has assumed responsibility for the overall DoD review and final determination of the DoD position regarding publication of your manuscript." Kelly indicated that processing was expected to be completed by September 15, 2000.

30. By letter dated March 20, 2001, Stillman's counsel contacted William J. Allard, General Counsel, DIA, and requested an opportunity to meet with DIA officials to discuss possible misunderstandings regarding the origins of the manuscript and to be properly cleared to review the manuscript.

31. By letter dated March 20, 2001, Allard indicated that "they were aware of the circumstances under which much of the information in the manuscript was acquired" and that questions regarding review of the manuscript should be addressed to the DFOISR.

Involvement Of Department of Defense

32. DoD was provided a copy of Stillman's manuscript by the DIA, and DFOISR assumed responsibility for the DoD review coordination. DoD was under the mistaken belief that Stillman wrote the manuscript while he was a DOE employee.

33. By Memorandum dated September 12, 2000, C.Y. Talbott, Deputy Director, DFOISR, notified Jeff Zarkin, DOE, that the:

Copies of the attachment and bracketed manuscript are allegedly classified and have been withheld.

34. By letter dated March 29, 2001, Stillman's counsel contacted Henry McIntyre, Director, DFOISR, and requested (1) an opportunity to meet with DoD officials, (2) the identification of the designated classification authority, (3) the classification categories DoD believes are at issue, (4) clarification of the grounds upon which DoD believes the information within the manuscript is owned by, produced by or for, or is under the control of the DoD or U.S. government, and (5) the authority under which DoD believes it may classify Stillman's manuscript. Additionally, McIntyre was notified that Stillman was never an employee of DOE, that DoD should permit Stillman's counsel to review the manuscript and that DoD must ensure that dissemination of the manuscript is limited to those who are participating in the classification review only due to copyright and propriety interests.

35. By letter dated April 5, 2001, McIntyre, Director, DFOISR, notified Stillman's counsel that he had received the letter dated March 29, 2001, and was soliciting comments from the classification authorities.

36. By letter dated April 10, 2001, Stillman's counsel requested a meeting with DoD officials no later than April 20, 2001, to discuss the many legal issues surrounding the manuscript, particularly because:

No meeting ever occurred, although McIntyre telephoned Stillman's counsel on April 23, 2001 to generically discuss the manuscript.

37. By letter dated May 16, 2001, Stillman's counsel requested a meeting with DoD officials no later than May 25, 2001.

38. By letter dated May 23, 2001, McIntyre, Director, FOISR, notified Stillman's counsel a meeting had been scheduled for May 24, 2001, for the representatives of the various involved agencies to discuss Stillman's manuscript. The government was then prepared to meet with Stillman's counsel on May 25, 2001, or a later mutually acceptable date.

39. On May 25, 2001, Stillman's counsel participated in a telephone conference call with McIntyre, Director, FOISR, and Stewart Aly, a DoD attorney. DoD indicated that it had completed its review, that DoD understands it cannot withhold the entire manuscript, and that DOE had not yet finished its review of the manuscript and required at least an additional three weeks. Furthermore, DoD was under the impression that all nine of Stillman's trips to China involved the U.S. government. Stillman's counsel responded that this was not true, and would further clarify the issue in writing.

40. By letter dated May 29, 2001, Stillman's counsel provided DoD with clarification regarding Stillman's relationship with the government on each of the trips he made to China. The DoD was requested to notify Stillman of the government's legal position with respect to the nine trips. Stillman offered to wait a reasonable amount of time to permit the government to adjudicate the information regarding his first three visits to China, if it conceded it cannot preclude Stillman from publishing information obtained during trips four through nine. However, this offer anticipated that the government would enter into good faith negotiations and cooperation to substantively discuss how to ensure that as much information is declassified as possible regarding the first three trips. A response was requested no later than June 1, 2001.

41. By letter dated June 1, 2001, McIntyre, Director, DFOISR, reiterated that the DOE's line-by-line review of the manuscript will take at least three weeks. He noted that "[a]bsent a DOE position, we cannot provide a consolidated position on the status of the manuscript. In addition, we are attempting to determine Mr. Stillman's status on all his trips to China based on information available to our agencies. We are working diligently to complete these actions as quickly as possible, but until then we have no basis to establish the government's legal position or offer options for your client's consideration."

42. By letter dated 5 June 2001, Stillman's attorney notified the DoD (with copies sent to the DOE and DIA) that litigation would be initiated on or after 18 June 2001, unless all reviews had been completed and substantial segregable portions of the manuscript had been approved for release, particularly in light of the circumstances set forth in his letter dated 24 May 2001. Furthermore, no delays would be permitted pertaining to Stillman's attorney's access to the manuscript since a proper security clearance request had been pending since March 2001.

43. By letter dated 8 June 2001, Stillman's attorney requested that the DoD identify the current classification level of the manuscript.

44. By letter dated 11 June 2001, McIntyre, Director, DFOISR, indicated that the "Department of Defense reviewers have tentatively determined that the manuscript contains information that should be classified at the SECRET classification level. Although this office is affording the appropriate security safeguards, the manuscript has not been formally classified by a classification authority. The classification decision will not be final until such a formal determination is made at the end of our review. I cannot comment on the Energy Department's actions or determinations in this matter."

45. By letter dated 15 June 2001, which was received at the end of the business day, McIntyre, Director, DFOISR, indicated that a meeting of the reviewers from the relevant agencies was scheduled for 19 June 2001, and proposed a meeting to occur sometime the week of 25 June 2001.

46. By letter dated 15 June 2001, Stillman's attorney notified DoD that the requirements set forth in his letters dated 24 May 2001 and 5 June 2001, had not been met.

Involvement Of Central Intelligence Agency

47. By Memorandum dated September 12, 2000, C.Y. Talbott, Deputy Director, DFOISR, notified Jeff Zarkin, DOE, that the "Central Intelligence Agency concurs with the Department of Defense assessment and has identified additional areas of concern which have been included in the attached list." The attached list remains allegedly classified and has not been released.

FIRST CAUSE OF ACTION
(ADMINISTRATIVE PROCEDURE ACT - DELAY OF FINAL DECISION)

48. Stillman repeats and realleges the allegations contained in paragraphs 1 through 47 above, inclusive.

49. Since 1962, Stillman has executed several secrecy agreements including one on October 23, 1985. Pursuant to this agreement, Stillman submitted his manuscript for prepublication review. The agreement notes that "the Department or Agency to which I have submitted material will act upon them, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.

50. The DIA and DOE have had a copy of Stillman's manuscript in their possession since January 2000. The DoD and CIA received copies shortly thereafter. The defendants have withheld a formal final decision from Stillman regarding the classification status of Inside China's Nuclear Weapons Program for more than seventeen months in violation of applicable statutes and regulations. However, the defendants have made it perfectly clear in internal memoranda that the manuscript cannot be published.

51. Despite repeated requests by both Stillman and his attorney for additional information concerning the defendants' formal positions regarding the publication of the manuscript, no information has been provided to them.

52. All requests to defendant DOE have been ignored. DOE officials have repeatedly not returned phone calls or responded to correspondence.

53. Despite Stillman's attorney's request for access to Stillman's manuscript, and the fact that he apparently maintains the appropriate clearance, the defendants have declined to permit access.

54. The defendants have unreasonably delayed issuing a final and timely decision regarding the proper classification level of Stillman's manuscript. Nor have they articulated any reasonable basis with any specificity to allow Stillman to "cure" any perceived concerns.

55. The defendants, its officers and employees, committed and undertook actions that were arbitrary, capricious and/or an abuse of discretion pertaining to Stillman, including, but not limited to, unreasonably delaying the classification process surrounding the review of Inside China's Nuclear Weapons Program. These acts are unwarranted by the facts, unsupported by substantial evidence, in violation of internal regulations and federal statutes, contrary to constitutional right, power, privilege, or immunity, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, thereby causing Stillman to suffer legal wrongs under the Administrative Procedure Act.

56. The defendants have violated such internal regulations as, but not limited to, Department of Defense Directive Numbers 5210.2 (April 3, 1981), 5210.50 (Feb. 27, 1992), 5210.83 (Nov. 16, 1994), 5230.9 (July 15, 1999), and 5230.25 (Aug. 18, 1995), DOE O 470.1 (June 21, 1996), DOE M 471.2-1B (Jan. 6, 1999), and DOE M 475.1-1A (May 8, 1998).

57. As a result, Stillman has suffered adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, and lost or jeopardized present or future financial opportunities.

SECOND CAUSE OF ACTION
(FIRST AMENDMENT - RIGHT TO PUBLISH -
LACK OF LAWFUL AUTHORITY)

58. Stillman repeats and realleges the allegations contained in paragraphs 1 through 47 above, inclusive.

59. Since 1962, Stillman has executed several secrecy agreements including one on October 23, 1985. Pursuant to this agreement, Stillman submitted his manuscript for prepublication review. The agreement notes that "all information to which I may obtain access by signing this Agreement is now and will forever remain the property of the United States Government."

60. In or around January 2000, Stillman, pursuant to his secrecy agreements, submitted his manuscript Inside China's Nuclear Weapons Program to the DIA and DOE for prepublication review. The DoD and CIA received copies shortly thereafter.

61. The DoD has objected to the public release of the entire manuscript, and does not believe excisions will correct any perceived classification problems. It has asserted that the information in the manuscript merits classification in accordance with the provisions of Executive Order 12958. "Public release of this document could, therefore, reasonably be expected to damage the security concerns of the United States. Additionally, open publication could also damage American foreign relations with China and have a deleterious effect on future scientific exchanges between the two countries."

62. The DOE has alleged the manuscript contains information "classified Secret Restricted Data (SRD) and Secret National Security Information (SNSI)." It refused to conduct a line by line review because of the DoD's blanket objection to publication of any aspects of the manuscript.

63. The CIA has also identified classification concerns in the manuscript, and concurs with the DoD's assessment that no portions can be published.

64. Stillman retired from LANL in 1993. Only his first three trips to China occurred during the time he was employed at LANL. The information obtained on the fourth through ninth trips occurred in his capacity as a private American citizen. The trips were not official in nature, and were not undertaken at the behest of or for the purposes of providing information to the defendants. Thus, the information contained in Stillman's manuscript was not obtained due to any access he derived as a result of any of his secrecy agreements.

65. Even with respect to those trips to China that Stillman made when employed at LANL, the information he obtained was from public sources such as seminars, speeches, and meetings that involved a large number of people from different countries including both government and non-government officials. Any special relationship of trust that existed between Stillman and the defendants was greatly diminished, if not wholly vitiated.

66. The defendants are not permitted to violate or abridge Stillman's constitutional right to publish unclassified information or any information obtained as a private citizen. They may not censor such material, contractually or otherwise. The government has no legitimate interest in censoring or authority to censor such information as that contained within Stillman's manuscript.

67. Because the defendants have impermissibly infringed upon Stillman's right to publish the information contained within his manuscript, they have violated Stillman's First Amendment rights. Thus, Stillman has suffered actual adverse and harmful effects, including, but not limited to, possible civil or criminal penalties, a delay in being able to report in a timely fashion on credible news stories, and/or lost or jeopardized present or future financial opportunities, which impairs his ability to serve the public.

THIRD CAUSE OF ACTION
(FIRST AMENDMENT - RIGHT TO PUBLISH -
CLASSIFICATION CHALLENGE)

68. Stillman repeats and realleges the allegations contained in paragraphs 1 through 47 above, inclusive.

69. Since 1962, Stillman has executed several secrecy agreements including one on October 23, 1985. Pursuant to this agreement, Stillman submitted his manuscript for prepublication review. The agreement notes that "all information to which I may obtain access by signing this Agreement is now and will forever remain the property of the United States Government."

70. In or around January 2000, Stillman, pursuant to his secrecy agreements, submitted his manuscript Inside China's Nuclear Weapons Program to the DIA and DOE for prepublication review. The DoD and CIA received copies shortly thereafter.

71. The DoD has objected to the public release of the entire manuscript, and does not believe excisions will correct any perceived classification problems. It has asserted that the information in the manuscript merits classification in accordance with the provisions of Executive Order 12958. "Public release of this document could, therefore, reasonably be expected to damage the security concerns of the United States. Additionally, open publication could also damage American foreign relations with China and have a deleterious effect on future scientific exchanges between the two countries."

72. The DOE has alleged the manuscript contains information "classified Secret Restricted Data (SRD) and Secret National Security Information (SNSI)." It refused to conduct a line by line review because of the DoD's blanket objection to publication of any aspects of the manuscript.

73. The CIA has also identified classification concerns in the manuscript, and concurs with the DoD's assessment that no portions can be published.

74. The defendants have failed to show that Stillman's right to publish is outweighed by the government's interest in efficiently carrying out its mission by minimizing harms that are real, not merely conjecture.

75. The defendants have failed to demonstrate the existence of substantial government interests that would enable it to prohibit the publication of Stillman's manuscript. Moreover, they have imposed unreasonable restrictions on Stillman's activities that are protected by the First Amendment.

76. The defendants' restrictions imposed upon Stillman have been unduly vague and were not narrowly confined to avoid infringement of his First Amendment rights. They have unnecessarily restricted speech that does not serve to protect any substantial government interest.

77. Most importantly, the defendants have not produced explanations with reasonable specificity that demonstrate a logical connection between the information to be deleted and the reasons for classification. The reasons for classification are neither rational or plausible. Thus, they cannot support their attempt to censor Stillman's manuscript.

WHEREFORE, plaintiff Danny B. Stillman requests that the Court award him the following relief:

(1) Issue a permanent injunction to block the defendants from restraining the publication of his manuscript "Inside China's Nuclear Weapons Program";

(2) Enjoin the defendants or other governmental agencies from initiating civil or criminal proceedings against Stillman for future publication of any information within his manuscript;

(3) Declare that Stillman possesses a First Amendment right to publish the information within his manuscript;

(4) Declare that the defendants violated the Administrative Procedure Act and their internal regulations governing prepublication review;

(5) Require the defendants to immediately issue written decisions regarding their respective positions on the publication of Stillman's manuscript;

(6) Award Stillman the costs of the action and reasonable attorney fees under the Equal Access to Justice Act or any other applicable law; and

(7) grant such other relief as the Court may deem just and proper.

Date: June 18, 2001




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