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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 Justice, and Thomas M. Bondy and Douglas Hallward–Driemeier, 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.
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Mark S. Zaid argued the cause and filed the brief for

appellee.

Mark H. Lynch argued the cause for amici curiae American 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 Tankersley, 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 access 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 under 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
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violated his rights under the First Amendment to the Constitution of the United States by refusing to authorize publication of his manuscript. Stillman’s counsel, Mark S. Zaid,

asked the Government to give him access both to the classified 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 security 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 underlying 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 security. (The district court dismissed as premature the motion to

compel with respect to the classified pleadings; the Government 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 trustworthy. 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 obligated 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 employee activities that in other contexts might be protected by

the First Amendment. The Government has a compelling 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 determining the precedence of issues.

Precisely because it is often difficult for a court to review

the classification of national security information, ‘‘[w]e anticipate 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 declassification.’’ 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 outweighs 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.