Appeals court says USTR can withhold document

WASHINGTON (AP) — An appeals court ruled Friday that the U.S. Trade Representative can withhold a classified position paper prepared during free-trade negotiations, reversing a lower court that had ordered the document’s release under a Freedom of Information Act request.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the disclosure would reveal a position taken by the U.S. in the past. “It seems perfectly reasonable to think that could limit the flexibility of U.S. negotiators,” wrote Judge A. Raymond Randolph, an appointee of President George H.W. Bush. He was joined by Judges Janice Rogers Brown and Brett M. Kavanaugh, both appointees of President George W. Bush.

The paper had been prepared during negotiations for a Free Trade Agreement of the Americas, conducted in the 1990s and 2000s. The talks never resulted in a deal.

U.S. District Court Judge Richard Roberts last year sided with the Center for International Environmental Law, which had sought the document. Roberts ruled there were no plausible or logical explanations to justify its secrecy. It was a rare court order to reveal a classified document. Roberts is an appointee of President Bill Clinton.

In its ruling Friday, the appeals panel wrote that courts are in a poor position to second guess the Trade Representative’s judgment in these types of matters, “but that is just what the district court did in rejecting the agency’s justification for withholding the white paper.”

The USTR said although the paper was not binding, international arbiters might still look to it in future cases, which the appeals court said was plausible.

“It is important to keep in mind that the Trade Representative was expressing concerns about the United States’ flexibility in future negotiations not necessarily with the governments that participated in the Free Trade Agreement of the Americas negotiations, but with governments that did not take part in those negotiations,” the panel wrote. Without the disclosure of the paper, such governments wouldn’t know the position the U.S. had taken in earlier negotiations.

The appeals court ruling opened with a 1796 statement by President George Washington, refusing a request from the U.S. House for a copy of instructions provided to the U.S. minister who negotiated a treaty with the king of Great Britain, and other related documents. In that statement, Washington wrote, “The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated … might have a pernicious influence on future negotiations.”

The court ruled that the government’s position in this case “has the force of history behind it. It echoes what George Washington wrote more than two centuries ago.”

Mark Caramanica of the Reporters Committee for Freedom of the Press called Friday’s ruling “yet another unfortunate example where the executive branch lays out theoretical harms for classifying information and a federal court effectively defers to that conclusion, agreeing that the government’s withholding justification lies within the universe of all possible harms no matter how speculative.” The committee and 32 other media organizations had filed a friend-of-the-court brief urging that the lower court ruling be upheld.

The Center for International Environmental Law did not immediately respond to a request for comment.

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