Dismissal of defamation claim against Wen Ho Lee and others upheld

In Trulock v. Lee, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Traxler, and King upheld the dismissal of the defamation claim brought by a former Department of Energy official (represented by Larry Klayman of Judicial Watch) against for Los Alamos scientist Wen Ho Lee for allegedly publishing a statement that the investigation of Lee was racially motivated.

In the trial court, the United States sought protective orders as a non-party and eventually intervened in the case, and on the government's motion to dismiss the trial court concluded that the case had to be dismissed because so much of the evidence needed was covered by the state secrets privilege. The kinds of information that was covered by the protective order included:

1. Intelligence sources and methods;
2. The CIA "walk-in" document;
3. CIA and other U.S. intelligence analyses regarding the capabilities and developmental status of the Chinese nuclear weapons program;
4. Information that would identify or reveal CIA Employees, Covert Installations, Operational Tradecraft, and Clandestine Sources and subsources. . . .
[5.] Restricted Data [under the Atomic Energy Act, 42 U.S.C. § 2011 et seq.] bearing on why and how the DOE AI was conducted including (a) information indicating if a compromise occurred and (b) information on exactly what compromise may have occurred.

The Fourth Circuit's opinion cites the following as the standard for the state secrets privilege: "Under the common law state secrets privilege, the government may prevent disclosure of information in a lawsuit if the court is satisfied 'from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.'" The Fourth Circuit affirmed the trial court's ruling even though the trial court never actually looked at any of the privileged documents, but instead relied on an affidavit from the Director of the CIA, George Tenet.