U.S. Navy asserts "state secrets" in sonar case

WASHINGTON Wed Mar 21, 2007 10:29am EDT

A humpback whale breaches the surface off the southern Japanese island of Okinawa, February 13, 2007. The U.S. Navy on Tuesday said it had asserted the ''state secrets'' privilege in a lawsuit by environmental groups, a move to keep the military from being forced to disclose information about the use of sonar believed to injure whales and other animals. REUTERS/Issei Kato

A humpback whale breaches the surface off the southern Japanese island of Okinawa, February 13, 2007. The U.S. Navy on Tuesday said it had asserted the ''state secrets'' privilege in a lawsuit by environmental groups, a move to keep the military from being forced to disclose information about the use of sonar believed to injure whales and other animals.

Credit: Reuters/Issei Kato

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WASHINGTON (Reuters) - The U.S. Navy on Tuesday said it had asserted the "state secrets" privilege in a lawsuit by environmental groups, a move to keep the military from being forced to disclose classified information about the use of sonar believed to injure whales and other animals.

Navy Secretary Donald Winter, in a court filing submitted on Monday, said disclosure of the information requested by plaintiffs "could reasonably be expected to cause exceptionally grave damage to national security."

The state secrets privilege, if upheld, renders information unavailable for litigation. It can be challenged, although the federal government often succeeds in asserting the protection.

"It can be challenged and we intend to challenge it," said Joel Reynolds, senior attorney for the Natural Resources Defense Council, the group that brought the lawsuit.

The Navy action is the latest in a string of Pentagon moves to derail the group's lawsuit. The Natural Resources Defense Council and other environmental groups say sonar used in routine training and testing violates environmental laws.

They also argue the Navy's sonar injures and kills marine mammals, including whales and dolphins.

Animal welfare organizations have documented cases of mass whale strandings and deaths around the world that they say are associated with sonar blasts thought to disorient marine mammals and sometimes cause bleeding from the eyes and ears.

In January, the Pentagon exempted the Navy for two years from a law protecting whales so that it could continue using the sonar during training. That removed one legal avenue for environmental groups to challenge Navy sonar.

The Navy said Tuesday's action should keep it from complying with requests from the plaintiffs in the lawsuit for specific information on all non-combat use of military sonar.

Plaintiffs had requested information on the latitude, longitude, time and date, duration, and name of the exercise for every non-combat use of military sonar by the U.S. Navy anywhere in the world, according to the court filing.

A Navy official said the information would hurt both U.S. national security and relationships with countries that participate in naval exercises with the United States.

"We were left no other alternative but to assert the state secrets privilege," the official said. "We're being asked to make public properly classified information. Our role is to provide for this nation's security and providing that information would be detrimental to that mission."

The Natural Resources Defense Council, however, said the Navy was trying to block access to all information relevant to the case, making it difficult to pursue.

"Our position here is not that the Navy cannot train with sonar, not that the Navy cannot use sonar during combat, but only that whales and other marine species should not have to die for practice," Reynolds said.

"That's what the litigation is about and the information whose disclosure the Navy seeks to block is directly related to that concern."

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