U.S. Court Overturns Decision in Trade Case

10 June 2013

Quoting George Washington, a U.S. appeals court June 7 denied access to a document concerning unsuccessful trade negotiations conducted in the 1990s and 2000s.

A three-judge panel overturned a lower court ruling giving deference to the opinion of the U.S. Trade Representative that disclosure of a past position could jeopardize future negotiations and limit the flexibility of U.S. negotiators.

The unanimous decision was written by three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit was composed of A. Raymond Randolph, an appointee of President George H.W. Bush, and Janice Rogers Brown and Brett M. Kavanaugh, both appointees of President George W. Bush.

U.S. District Court Judge Richard Roberts, an appointee of President Bill Clinton, last year sided with the Center for International Environmental Law, in support of releasing an internal white paper on the talks.  (See previous Freedominfo.org report.)

“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.

The appeals court ruling cited a 1796 statement by President George Washington, who 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.”

Mark Caramanica of the Reporters Committee for Freedom of the Press was quoted by the Associated Press as calling 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.”

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