Zenith Radio Corp. v. United States , 1 Ct. Int'l Trade 325 ( 1981 )

Order on Claims of Privilege

Maletz, Judge.

1(a) In an affidavit executed on March 15, 1981, Alexander M. Haig, Jr., Secretary of State, has claimed state secrets privilege for the following documents or specified portions thereof:

(b) Pursuant to the court’s order of May 13, 1981, these documents were delivered to the court under seal on May 28, 1981, for examination by the court in camera.

(c) The court has carefully examined each of these documents in camera and on the basis of such examination orders:

(1) That the claim of state secrets privilege be sustained as to the specified portions of documents 46, 47, and 48, and that such portions shall not be disclosed to plaintiff.

(2) That the claim of state secrets privilege as to document 68 be denied as moot since it has already been publicly disclosed by the Government on two prior occasions. Thus the document was attached as an exhibit to an affidavit of Robert H. Mundheim, General Counsel of the Department of the Treasury, that was filed in the United States District Court for the District of Columbia in connection with the Compact litigation. A copy of this affidavit including the document in question was also filed in this court in connection with the Government’s cross-cross-motion for summary judgment in this case.

11(a) In an affidavit executed on March 16, 1981, William E. Brock, United States Trade Representative, has claimed executive privilege for six documents stating that each is an intragovern-mental or intergovernmental communication which contains the advice, recommendations, or statements of opinion of U.S. Government employees or which indicates negotiating positions of the U.S. and Japanese Governments. The six documents for which such privilege is claimed are as follows:

1. A memorandum dated April 13, 1977 from Alan Wm. Wolff to members of the Trade Policy Review Group concerning the continuing discussions with the Japanese regarding color TV’s.

2. A memorandum of April 1977 from Tom Graham, Deputy General Counsel, to Ambassador Robert Strauss concerning the Zenith countervailing duty case. Attached is a proposed press statement and a briefing paper.

3. A draft Memorandum of Understanding concerning TV’s dated April 19,1977 with the following attachments:

(1) Draft Notes to be exchanged containing provisions concerning trade in color television receivers

(2) Draft agreed minutes

(3) Draft side letters

4. Draft Side Letter of U.S. Administration of Agreement dated May 5,1977.

5. A memorandum of May 1977 from Robert S. Strauss to members of the Economic Policy Group concerning color TV’s. Attached is a draft memorandum to the President concerning the color television receiver agreement with Japan.

6. Drafts, dated May 20, 1977, of letters of notification to the Speaker of the House and the President of the Senate concerning import relief for the color television industry.

(b) Pursuant to the court’s order of May 13, 1981, these documents were delivered to the court under seal on May 28, 1981 for examination by the court in camera.

(c) The court has carefully examined each of these documents in camera.

(d) The court has carefully weighed the government’s need in the public interest in maintaining the confidentiality of each of the foregoing documents as against the need of the plaintiff in prosecuting this action.

(e) The court has concluded that the government’s need in the public interest in maintaining the confidentiality of each of these six documents far outweighs any need of the plaintiff in prosecuting this action and therefore orders that the claim of executive privilege for each of such documents be sustained and that such documents shall not be disclosed to plaintiff.

111(a) In an affidavit executed on March 13, 1981, Admiral Bobby Ray Inman, Acting Director of Central Intelligence, makes reference to two classified in camera affidavits in which state secrets privilege is claimed.

(b) Pursuant to the court’s order of May 13, 1981, the two in camera affidavits were on May 27, 1981 hand delivered to the court personally.

(c) The court has carefully examined in camera the two affidavits.

(d) On the basis of this examination, the court orders that Admiral Inman’s claim of state secrets privilege contained in his in camera affidavit, together with the claim of state secrets privilege made by an official referred to in that affidavit be sustained.