Georgetown Security Law Brief

Senator seeks opinion used in al-Awlaki killing

02/09/12: The Atlanta Journal Constitution reports that a Democratic member of the Senate Intelligence Committee said Wednesday that he, like the public, is being kept in the dark about Justice Department legal advice on when the US may kill American citizens abroad who are suspected terrorists. Senator Ron Wyden of Oregon says he's been trying for more than a year to get the legal analysis from the intelligence community without success. He is renewing his request four months after American-born cleric Anwar al-Awlaki and a second American, Samir Khan, were killed by a CIA air strike in Yemen.

Ex-CIA officer may be exploring guilty plea in leak case

02/09/12: POLITICO reports that former CIA officer John Kiriakou, charged last month with leaking the identities of other CIA officers involved in the interrogation of terrorism suspects, may be exploring the possibility of entering a guilty plea in the case, court records suggest. Normally, prosecutors have 30 days to obtain a grand jury indictment after filing a complaint. However, on Tuesday, the government and Kiriakou's defense attorney, Plato Cacheris, filed a joint motion seeking to extend that deadline. The motion contained no mention of plea discussions, but such extensions are often sought to accomodate plea negotiations.

Bradley Manning to face all charges in court-martial

02/04/12: WIRED reports that WikiLeaks suspect Bradley Manning is headed for a general court-martial, according to the commander of the US Army Military District of Washington in an announcement released late Friday. Major General Michael Linnington, the general convening authority for the district, made the determination that Manning will face all 22 charges leveled against him. The most serious charge — aiding the enemy — carries a possible death penalty. Prosecutors have said they will not seek the death penalty. Instead, Manning faces life in prison if convicted of all the charges.

ACLU sues to force release of drone attack records

02/01/12: The Washington Post reports that the American Civil Liberties Union asked a federal court Wednesday to force the Obama administration to release legal and intelligence records related to the killing of three US citizens in drone attacks in Yemen last year. The lawsuit, filed in the US District Court for the Southern District of New York, charged the Justice and Defense departments and the CIA with illegally failing to respond to requests made in October under the Freedom of Information Act.

After Obama’s remarks on drones, White House rebuffs security questions

02/01/12: The Washington Post reports that White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret US drone program in Pakistan when he openly discussed the subject the day before. He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

Ex-CIA officials assail ID of agents

01/31/12: The Washington Times reports that former intelligence officials use “reprehensible” and “egregious” to describe the alleged acts of a former CIA officer charged by the government with betraying his own when he revealed the identities of two overseas operatives to the media. These former officials reject the image of John Kiriakou as a high-minded “whistleblower” who sought to expose official wrongdoing or a botched intelligence operation.

Slow FOIA request responses cloud a window into Washington

01/29/12: The New York Times reports that the intent of the Freedom of Information Act (FOIA) was to provide citizens, scholars and journalists a window into the workings of their government, but sometimes it seems as though the shades are drawn. According to the act, federal agencies are supposed to promptly release documents requested by the public. In the dialect of Washington, it can be a noun or a verb. But the FOIA process is seldom prompt. The courts have ruled that government agencies must respond to FOIA requests in 20 days. But some requests are approaching 20 years old.

DOJ defends keeping Bin Laden death photos secret

01/27/12: The Blog of Legal Times reports that the US Justice Department has asked a federal judge to keep secret photos showing the death of Osama bin Laden, saying the images are classified because of their potential to incite violence against the United States. The department filed court papers this week in a FOIA suit in Washington asking US District Judge James Boasberg to keep the photos out of the public domain. The DOJ asserts the photos reveal specific military and intelligence activities, methods and techniques.

Court says review of security clearance dispute is “prohibited”

01/23/12: Secrecy News reports that a government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week. Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”

Pentagon, CIA sued over alleged meetings with filmmaker

01/19/12: Reuters reports that Judicial Watch, a government watchdog group, filed a Freedom of Information Act complain against the Department of Defense and the Central Intelligence Agency, claiming the agencies are refusing to release details of their alleged meetings and communications with director Kathryn Bigelow and writer Mark Boal. It has been alleged that Bigelow and Boal -- in preparation for the script to their Annapurna Pictures movie about the killing of Osama Bin Laden -- received classified information regarding his death.

Feds say ex-NSA analyst had top-secret-plus info on home computers

01/18/12: POLITICO reports that computers seized from a retired National Security Agency analyst's home in 2007 contained information that is classified at a level beyond "top secret," officials said in court filings Tuesday. A prosecutor and a senior NSA official made the claim to a federal court in Baltimore in response to a motion ex-NSA analyst Kirk Wiebe filed in November, demanding that the Federal Bureau of Investigation return items seized from Wiebe's Westminster, Maryland home four-and-a-half years ago. "Documents contain information that is currently and properly classified TOP SECRET//SI/REL to USA, FVEY."

Privacy group seeks to lift veil on domestic drones

01/13/12: The Washington Post reports that the Federal Aviation Administration has authorized the use of hundreds of drones in US airspace in recent years but offered few details on who is operating them. This week, a privacy advocacy group filed suit to force the Department of Transportation to release its records publicly. “As the government begins to make policy decisions about the use of these aircraft, the public needs to know more about how and why these drones are being used to surveil United States citizens," said Jennifer Lynch, attorney for the San Francisco-based Electronic Frontier Foundation, which filed the suit. 

Lawsuit seeks detainee's Guantánamo video

01/10/12: The Miami Herald reports that a new lawsuit seeks to force the US government to make public the videotapes of harsh interrogation carried out on a Guantánamo Bay detainee nearly a decade ago. The federal lawsuit was filed Monday in New York. Lawyers with the Center for Constitutional Rights said they want the public to see the videotapes to shift the discussion about interrogation methods used in the quest to stop terrorism worldwide. The videotapes were made of the interrogation of Saudi citizen Mohammed al-Qahtani. He remains held at Guantánamo.

NYT files lawsuit to get al-Awlaki targeted killing memo

12/23/11: CNN reports that the New York Times has filed a lawsuit against the Department of Justice charging that the government failed to release information under the Freedom of Information Act on records surrounding questions of the legality of targeted killing, especially as it relates to American citizens. The lawsuit revolves around the death of Anwar al-Awlaki, the Yemeni-American cleric who was killed by a US drone strike in September in Yemen.

Rights groups accuse Europe of CIA flights coverup

12/20/11: The San Francisco Chronicle reports that a majority of 28 mostly European countries have failed to comply with freedom of information requests about their involvement in secret CIA flights carrying suspected terrorists, two human rights groups said Monday. London-based Reprieve and Madrid-based Access Info Europe accused European nations of covering up their complicity in the so-called "extraordinary rendition" program by failing to release flight-traffic data that could show the paths of the planes. The groups said only seven of 28 countries had supplied the requested information.

UK court grants Assange extradition appeal

12/16/11: The Local reports that WikiLeaks founder Julian Assange has been granted permission to appeal against extradition from Britain to Sweden over rape allegations and a hearing will start on February 1, a court said Friday. The decision means Assange will spend a second Christmas at the country mansion of a wealthy supporter in Norfolk, eastern England. He was arrested last December on a European arrest warrant issued by Sweden after allegations by two women of sexual assault and rape. Assange believes the allegations are politically motivated and linked to WikiLeaks' release of hundreds of thousands of classified US files about the wars in Iraq and Afghanistan.

CIA will process request on Open Source Works

12/14/11: Secrecy News reports that in an abrupt reversal, the Central Intelligence Agency said that it will process a Freedom of Information Act request for documents pertaining to the establishment of Open Source Works, the CIA’s in-house open source intelligence organization. Intelligence historian Jeffrey Richelson had requested the charter of Open Source Works under the Freedom of Information Act, only to be told that the CIA could not confirm or deny the existence (or non-existence) of responsive records.  But Dr. Richelson said that CIA Information and Privacy Coordinator Susan Viscuso called him yesterday to inform him that the request would be processed after all.

The ‘fill in the blanks’ court game of indefinite detention

12/13/11: The New York Times reports that recent opinions from the United States Court of Appeals for the District of Columbia Circuit are studded with redactions that call to mind the zany game of Mad Libs. Consider the case of a Yemeni man who was picked up near the border between Afghanistan and Pakistan in December 2001. The main question in his case was whether a decade-old intelligence report could justify his indefinite detention at Guantánamo Bay, Cuba. It is hard to tell just what the report was, much less what it said, thanks to the extravagant redactions in the appeals court’s decision, entire pages of which are blacked out.

Charter of Open Source organization is classified, CIA says

12/12/11: Secrecy News reports that Open Source Works, which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information.  Oddly, however, the directive that established Open Source Works is classified, as is the charter of the organization.  In fact, CIA says the very existence of any such records is a classified fact. “The CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, in a November 29 response to a Freedom of Information Act request from Jeffrey Richelson of the National Security Archive for the Open Source Works directive and charter.

To State Department, WikiLeaks or not, secrets are secrets

12/08/11: The New York Times reports that the quarter-million confidential State Department cables obtained by WikiLeaks last year have been public on the Web for months. But don’t tell the government. It is pretending otherwise. Asked in April by the American Civil Liberties Union under the Freedom of Information Act for copies of 23 cables on Guantánamo, rendition and other matters, the State Department responded as if the confidential documents were still confidential.

Department of Justice’s updated FOIA policy emphasizes customer service

12/08/11: Federal News Radio reports that the Department of Justice is putting greater emphasis on customer service in its updated policy for responding to Freedom of Information Act requests. Most requests at DoJ are referred to another agency, based on where the documents originate. The updated FOIA policy states the department must advise the FOIA requester that their request has been referred and provide the name of the agency to the requester with that agency's FOIA contact.

Effort to declassify old US secrets a huge job

12/04/11: The Seattle Times reports that the Air Force's "Reports on Soviet Air Power and Strategic Nuclear Weapons," about 2,500 pages in all, were produced between 1952 and 1955, but not until earlier this year were 2,210 pages made public. The release is part of a large-scale effort at the National Archives to clear a backlog of nearly 400 million pages that should have been declassified a long time ago. "All of these pages had been piling up here, literally," said a former CIA official who is the head of the National Declassification Center (NDC) at the National Archives. 

Intel analyst stripped of clearance settles with DIA, but still doesn’t know why he was fired

11/23/11: The Washington Post reports that the Defense Intelligence Agency has reached a settlement with a former analyst who was fired but never told why. John Dullahan, a 66-year-old Vietnam veteran and career Army officer, was stripped of his security clearance in 2009. Under a national security clause invoked by the Pentagon, he could not be provided with the information on the accusations that led to his termination, or attempt to contest the move under the normal appeals process.

FBI must pay penalty to California Muslims

11/18/11: The Sacramento Bee reports that the FBI must pay the legal fees of Muslim activist groups that sued the federal agency for access to its files, according to a US District Court ruling filed Thursday. Judge Cormac Carney made clear that the financial sanction was not based on the merits of the Islamic Shura Council of Southern California's Freedom of Information Act case, but it was to punish a government that chose to lie to its own judicial system. "The Court must impose monetary sanctions to deter the Government from deceiving the Court again," Carney wrote.

Pre-publication review as a secrecy battleground

11/16/11: Secrecy News reports that the Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative. Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.

Muslim group's suit for FBI manual hits setback

11/16/11: Politico reports that a Muslim group's Freedom of Information Act lawsuit demanding the text of the Federal Bureau of Investigation's main investigative manual has suffered a setback as a result of a judge's ruling last week. Muslim Advocates is seeking access to the FBI's Domestic Investigations and Operations Guide, a 689-page tome that sets the rules FBI agents are required to follow when pursuing investigations and dictates when internal approvals are required for using specific tactics, such as surveillance.

CIA sees “little likelihood” of finding documents on secrecy reform

11/15/11: Secrecy News reports that there is “little likelihood” that the Central Intelligence Agency will be able to produce any records documenting the CIA’s implementation of the Fundamental Classification Guidance Review that each classifying agency is required to conduct, the Agency said last week. The Fundamental Classification Guidance Review - ordered by President Obama in his December 2009 executive order 13526 (section 1.9) as a systematic effort to eliminate obsolete or unnecessary classification requirements - has already achieved some limited results at the Department of Defense and elsewhere.

Obama intelligence panel identified after suit

11/12/11: Politico reports that a federal lawsuit appears to have pried from the Obama administration the names of the members of a presidentially-appointed panel that handles reports of illegal and improper spying by the intelligence community. The Electronic Frontier Foundation said it asked for records on the make-up of the Intelligence Oversight Board in February, after a reporter's query for the information was rejected. The online civil liberties group sued in September after getting no response to its request. EFF says it got an answer to its FOIA a week after filing suit.

Obama won't release another surveillance opinion

11/12/11: Politico reports that the Justice Department is refusing to release a key legal opinion governing the use of "exigent letters," a mechanism the FBI uses to request information including telephone company records. In court filings Thursday night, the Obama administration said it would not release the January 2010 Office of Legal Counsel memo because portions of it are classified and because disclosing any part of the memo would damage the deliberative process and infringe on the attorney-client relationship.

Opinion: America’s unnecessary secrets

11/08/11: The New York Times features an opinion piece by Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, and J. William Leonard, director of the Information Security Oversight Office from 2002 to 2007. Goitein and Leonard discuss how the danger of excessive government secrecy is a lesson we should have learned over the last decade. They assert that proper classification of information is vital to keeping the nation safe, but that “overclassification,” as the 9/11 Commission found, jeopardizes national security by inhibiting information sharing.

Justice Department pulls controversial FOIA regs

11/04/11: POLITICO reports that the Justice Department is nixing proposed Freedom of Information Act regulations that lawmakers from both parties had assailed as authorizing federal officials to lie to FOIA requesters. The proposal said that when an agency determined certain exclusions from FOIA apply, "the component utilizing the exclusion will respond to the request as if the excluded records did not exist." Though the regulation was proposed in March, the movement against it seemed to gather steam in recent days, drawing public criticism from Republicans who said it promoted lying by the government.

Government to disclose evidence against WikiLeaks suspect in pretrial hearing

10/30/11: The Washington Times reports that the Army is preparing to hold a pre-trial hearing that for the first time will disclose the government’s case in detail against the soldier accused of disseminating thousands of classified documents that were aired on the anti-secrecy website WikiLeaks. A spokeswoman for the Military District of Washington at Fort McNair, which has jurisdiction over the proceedings, said the investigative hearing, known as an Article 32, will be held “in the Washington area.”

Israeli army whistleblower sentenced to 4 1/2 years on espionage charge

10/30/11: The Sacramento Bee reports that Anat Kamm, a former Israeli soldier who admitted to relaying classified military documents to a newspaper reporter, was sentenced on Sunday to 4 1/2 years in prison on espionage charges, according to a ruling from an Israeli court. According to earlier court documents, Kamm had told investigators she wanted to disclose certain Israeli military operations against West Bank militants to provide the public with evidence of "war crimes."

State Department leads classification, but sometimes lags behind

10/25/11: Secrecy News reports that at its best, the State Department’s Foreign Relations of the United States (FRUS) series serves as a driver of declassification, propelling it farther and faster than it would otherwise go.  But it’s not always at its best. Although a 1992 law directed the State Department to publish records of major US foreign policy decisions “not more than 30 years after the events recorded,” the department has never met this deadline.  Nor has Congress effectively required that it do so.  In fact, Congress has not even conducted regular oversight of the FRUS program, which has experienced significant turmoil in recent years.

Department of Justice still wants New York Times reporter’s sources

10/20/11: Politico reports that the Justice Department is asking a federal appeals court to force a New York Times reporter to testify about his confidential sources at the trial of a Central Intelligence Agency officer accused of leaking top-secret information, a move that could unleash a major First Amendment battle. In a court filing Wednesday, federal prosecutors formally appealed US District Court Judge Leonie Brinkema’s ruling in July that Times national security reporter James Risen did not have to identify his sources during the trial of ex-CIA officer Jeffrey Sterling.

White House nominations to oversight panels lag

10/20/11: Secrecy News reports that a coalition of public interest groups recently asked the President to complete the process of nominating members to the Privacy and Civil Liberties Oversight Board, established by Congress to independently oversee the conduct of information sharing within government and to ensure the protection of privacy and civil liberties interests. The White House has also lagged in appointing five new members to the nine-member Public Interest Declassification Board, as the terms of its previous nominees have expired. 

Ruling implies that Espionage Act could cover unclassified information

10/13/11: Secrecy News reports that a court ruling that interpreted the term “national defense information” expansively to include unclassified, non-governmental information could open the door to a new series of anti-leak prosecutions under the Espionage Act, according to a petition that was filed in the Ninth Circuit Court of Appeals this week. In US v. Dongfan Chung, a court ruled (and an appeals court last month upheld) that Chung would be sentenced under the guideline for “gathering national defense information” even though none of the information he handled was classified or even held by the government.

Reducing overclassification through accountability

10/07/11: Secrecy News reports that, as described in Dana Priest’s book “Top Secret America” (co-authored with William Arkin), the notion that “it’s secret because it’s secret” actually goes a long way towards explaining the often reflexive and indiscriminate practice of national security classification.  It therefore stands to reason, says a new report from the Brennan Center for Justice, that if classifiers were obliged to justify their classification actions with more clarity and precision, they would classify less.

Secret panel can put Americans on kill list

10/06/11: Reuters reports that American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions. There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

Judge OKs suit over State Department FOIA handling

09/30/11: Politico reports that a federal judge has given the go-ahead to a lawsuit alleging that the State Department ignores a requirement to give Freedom of Information Act requesters estimates of the amount of time needed to complete their requests.  Author Greg Muttitt sued State and several other agencies after they allegedly failed to comply with his requests for information about the Iraqi oil and gas industry.

Even those cleared of crimes can stay on FBI’s watch list

09/28/11: The New York Times reports that the Federal Bureau of Investigation is permitted to include people on the government’s terrorist watch list even if they have been acquitted of terrorism-related offenses or the charges are dropped, according to newly released documents. The files, released by the FBI under the Freedom of Information Act, disclose how the police are instructed to react if they encounter a person on the list and shed new light on how names are vetted for possible removal from the list.

Event: Brennan Center panel on “Curbing Needless Secrecy”

09/26/11: Secrecy News reports that the Brennan Center for Justice will sponsor a panel discussion October 5 at the National Press Club in Washington DC on overclassification and “Curbing Needless Secrecy” to accompany the release of a new report on the subject. Participants include former Rep. Christopher Shays, former Information Security Oversight Office director J. William Leonard, former National Reconnaissance Office director and chair of the Public Interest Declassification Board Martin C. Faga, and Elizabeth Goitein of the Brennan Center.

At CIA, climate change is a secret

09/22/11: Secrecy News reports that when the Central Intelligence Agency established a Center on Climate Change and National Security in 2009, it drew fierce opposition from congressional Republicans who disputed the need for an intelligence initiative on this topic.  But now there is a different, and possibly better, reason to doubt the value of the Center:  It has adopted an extreme view of classification policy which holds that everything the Center does is a national security secret.

Number of security clearances soars

09/20/11: Secrecy News reports that the number of persons who held security clearances for access to classified information last year exceeded 4.2 million — far more than previously estimated — according to a new intelligence community report to Congress. The report, which was required by the FY2010 intelligence authorization act, provides the first precise tally of clearances held by federal employees and contractors that has ever been produced.  The total figure as of last October 1 was 4,266,091 cleared persons.

Commentary: What we still don’t know after September 11

09/18/11: The New York Review of Books features a new article by David Cole, addressing what, precisely, did and did not change after September 11, particularly with respect to law, liberty, and security. Cole discusses the response of the Bush and Obama administrations to terrorism, concluding that one of the most important lessons of the past decade may be that the rule of law has proved far more resilient than many would have predicted.

European Council offers rebuke to US secrecy policy

09/08/11: Secrecy News reports that a draft resolution prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority. “In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

Government will not declassify 2001 opinion on surveillance

08/26/11: Secrecy News reports that The Department of Justice refused this month to declassify a 2001 legal Office of Legal Counsel opinion by John C. Yoo concerning the legality of the Bush Administration’s warrantless surveillance program. The redacted information in the OLC opinion “is classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege,” wrote Paul P. Colborn, Special Counsel at OLC.

CIA releases more Bay of Pigs invasion secret papers

08/03/11: The Miami Herald reports that on the 50th anniversary of the infamous Bay of Pigs invasion, the Central Intelligence Agency has released more of it long-held secret papers on its failed 1961 Cuba operation to overthrow Fidel Castro. The secret documents were released in Washington, DC, pursuant to a Freedom of Information Act lawsuit filed by Peter Kornbluh, an activist who has long sough to unmask US secret operations in Latin America.

Commentary: False claims about FOIA

06/13/11: The New York Times has posted an editorial opinion on the recent holding in Schindler Elevator Corp. v. United States ex rel. Kirk. It concludes that the result will curtail lawsuits by whistle-blowers who suspect that a contractor may be defrauding the government but need information obtained from FOIA requests to help confirm their allegations.

Ex-CIA author, pursued by agency, appeals for help with legal defense

06/07/11: SpyTalk reports that The ex-CIA operations officer known as Ishmael Jones, who penned an acid attack on his former employer in an unauthorized,  2008 memoir, is trying to raise cash to defend himself in a suit  brought by the spy agency. The CIA is suing Jones (a pseudonym taken by the former Marine and clandestine operations officer) on the basis that his memoir, "The Human Factor: Inside the CIA's Dysfunctional Intelligence Culture," was published without the agency’s permission, this violating his secrecy oath.