Georgetown Security Law Brief

ACLU files suit seeking information on US drone attacks

03/18/10: JURIST reports that the American Civil Liberties Union (ACLU) filed suit Tuesday seeking information related to the US government's use of unmanned Predator drones. The suit, filed in the US district court for the District of Columbia, seeks to enforce a Freedom of Information Act (FOIA) request made in January. The ACLU alleges that the unmanned warplanes have been used by the military and CIA for killings in Afghanistan, Iraq, and Pakistan. The ACLU also cites troubling reports indicating that US citizens may be targeted and killed by Predator drones.

FOIA-request audit shows response to Obama transparency pledge is uneven

03/15/10: The Washington Post reports that the Obama administration's first year of efforts to improve access to government information has yielded mixed results, according to an audit of Freedom of Information Act requests set to be released Monday.

House approves two secrecy policy measures

03/01/10: Secrecy News reports that the House of Representatives last week approved two secrecy-related amendments to the pending FY 2010 intelligence authorization act (HR 2701).  The amendments and the bill itself await further action by the Senate.

Justice Department reveals more missing e-mail files

02/27/10: The New York Times reports that large batches of e-mail records from the Justice Department lawyers who worked on the 2002 legal opinions justifying the Bush administration’s brutal interrogation techniques are missing, and the Justice Department told lawmakers Friday that it would try to trace the disappearance.

Fifth Circuit rules that Vaughn Index is necessary to withhold documents

02/27/10: The FOIA blog reports that the United States Court of Appeals for the Fifth Circuit has ruled that the IRS did not adequately explain its witholdings and must provide a Vaughn index when in litigation before it can have a Court rule that it properly withheld documents.  The Court explained in detail why a Vaughn index or a similar document that specifically explains why documents have been withheld are necessary.

Special Forces chief battles to stop book revealing details of operations in Iraq

02/08/10: The Times (UK) reports that the head of Britain’s special forces has been trying to stop the publication of a book by a senior BBC journalist which describes in “tactical detail” operations carried out by the SAS in Iraq from 2003 to 2009. The major-general, who cannot be identified for security reasons, is concerned about the impact of Task Force Black on the elite regiment’s operational effectiveness because of the contents.

Defense Department turns down FOIA request for Mohamed Al Hanashi's autopsy report

02/05/10: The Huffington Post has a post by journalist Naomi Wolf describing her denial of a FOIA request for the autopsy of Mohamed al Hanashi, a representative of Guantanamo detainees who was found dead in his cell while Wolf visited Guantanamo in 2009 - "an aparent suicide" according to the Gitmo press office.

EPIC files lawsuit against NSA on agency's cybersecurity authority

02/05/10: The FOIA Blog reports that the Electronic Privacy Information Center ("EPIC") has filed a FOIA lawsuit against the National Security Agency in US District Court for the District of Columbia.  The lawsuit concerns a request made to NSA by EPIC for details on the authority NSA was granted on domestic cybersecurity matters under National Security Presidential Directive 54, which was promulgated during the Bush administration.

Judge ties Italy secret service to cleric’s abduction

02/01/10: The New York Times reports that the Italian secret services were most likely aware of, “and perhaps complicit in,” the abduction of an Egyptian cleric from the streets of Milan in 2003, a judge in Milan said Monday. But, he added, state secrecy prevented the court from proving this.

Judge tosses NSA spy cases

01/23/10: Wired reports that a federal judge is dismissing lawsuits accusing the government of teaming with the nation’s telcos to funnel Americans’ electronic communications to the National Security Agency without warrants. US District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

Federal judge orders release of sealed court papers in Blackwater case

01/12/10: The Blog of Legal Times reports that Judge Ricardo Urbina is planning to release hundreds of pages of transcripts from sealed hearings in the government’s prosecution of five former Blackwater Worldwide security guards, saying there is no justification for keeping the information secret indefinitely.  Last month, Urbina dismissed charges after finding prosecutors misused immunized statements the guards made during the investigation of the September 2007 fatal shooting in Nisour Square in Iraq that was the centerpiece of the criminal case against the defendants.

Officials hid truth of immigrant deaths in jail

01/11/10: The New York Times reports that the ACLU has obtained documents concerning most of the 107 deaths in detention counted by Immigration and Customs Enforcement since October 2003.  The documents show how officials — some still in key positions — used their role as overseers to cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.

Obama designates and limits original classifiers

01/06/10: Secrecy News reports that in a December 29 order published in the Federal Register yesterday, President Obama designated more than two dozen officials as “original classification authorities” (OCAs) who have the power to classify information as Top Secret or Secret, and (in most cases) to delegate such authority to their subordinates. The new list of authorized classifiers contains only a few changes from past practice, but the Executive Order on classification policy that was also issued on December 29 imposes several new conditions on original classifiers that should help limit excessive secrecy.

Washington Post seeks sealed Blackwater transcript access

01/05/10: Politico reports that the Washington Post is asking for access to transcripts of secret hearings that led to the dismissal of all criminal charges against five ex-Blackwater employees accused of massacring Iraqi civilians in 2007. Judge Ricardo Urbina, who threw out the charges against the five on New Year's Eve, has ordered the government and defense attorneys to file any objections to the Post's request by the end of the day.

Obama curbs secrecy of classified documents

12/30/09: The New York Times reports that President Obama declared on Tuesday that “no information may remain classified indefinitely” as part of a sweeping overhaul of the executive branch’s system for protecting classified national security information. In an executive order and an accompanying presidential memorandum to agency heads, Mr. Obama signaled that the government should try harder to make information public if possible, including by requiring agencies to regularly review what kinds of information they classify and to eliminate any obsolete secrecy requirements.

Top FOIA stories of 2009

12/29/09: The FOIA blog has posted a retrospective year-end look at FOIA news in 2009, focusing particularly on the repercussions of Obama's 1/21/09 memorandum and the furor over detainee photographs.

When is discovery appropriate in a FOIA case?

12/25/09: FOIAblog reports that in recent decision, the DC Circuit has held that discovery in a FOIA lawsuit is usually only appropriate (and rarely then) when it is needed after the government moves for summary judgment. 

DOJ urges closed hearing in Blackwater case in DC

12/22/09: The Blog of Legal Times reports that DOJ wants to bar the public from a court hearing Jan. 7 in the criminal case against five Blackwater security guards who are charged in the shooting deaths of 17 Iraqi civilians, saying that the proceeding may result in the disclosure of classified information.

EPIC sues TSA on body scanners

12/22/09: The Lift reports that the Electronic Information Privacy Center (EPIC) has filed a lawsuit against DOJ for allegedly failing to disclose information about the use of devices that capture black and white images of people stripped naked. According to EPIC, the TSA confirmed that the “Whole Body Imaging” (WBI) machines were being used in at least one Virginia federal court by the US Marshall Service.

Obama to declassify secret records

12/21/09: The Washington Times reports that In an executive order that the president is likely to sign before year's end, President Obama will create a National Declassification Center to clear up the backlog of 400 million pages of yet-to-be declassified Cold War documents.

Israeli lawyer guilty of leaking FBI secrets

12/18/09: Politico reports that a prominent Israeli peace activist and lawyer who was apparently working as a contract linguist for the FBI has pleaded guilty to leaking five secret US government documents to a blogger, the Justice Department said Thursday. Shamai Kedem Leibowitz, also known as Samuel Shamai Leibowitz, 39, appeared in federal court in Greenbelt, Md. Thursday to plead guilty to a single felony count of disclosing classified communications intelligence information to an unauthorized party, according to court records and a Justice Department release. Court papers said Leibowitz held a "top secret" clearance and worked from January through August 2009 for an FBI task force in Calverton, Md.

New framework proposed for “sensitive” government info

12/15/09: Secrecy News reports that an interagency report released by the Obama Administration today says that the government should replace the more than 100 different control markings that are now used to limit the distribution of sensitive but unclassified (SBU) information and should establish a single “controlled unclassified information” (CUI) policy for all such information in government. The Department of Defense, the intelligence agencies, and the Department of Homeland Security have already indicated that they plan to use the CUI Framework for all of their sensitive unclassified information.

22 million e-mails missing from Bush White House found

12/15/09: Wired reports that White House computer technicians have found 22 million e-mails that were believed to have been lost during President George W. Bush’s administration, according to the Associated Press. The discovery was announced Monday by the National Security Archive and Citizens for Responsibility and Ethics in Washington, or CREW, which filed lawsuits against the Executive Office of the President, or EOP, over the e-mails in 2007.

Lawmakers want to bar sites from posting sensitive government docs

12/11/09: Wired reports that three Republican lawmakers have asked the Department of Homeland Security what can be done to bar or criminally penalize whistleblower sites that re-posted a sensitive airport-screening manual that was published on the internet by a government worker.

DOJ criticized for closing FOIA meeting to the public

12/09/09: The FOIA Blog reports that The Department of Justice was criticized for keeping the public out of a training meeting it held with FOIA liasions, but has now released the powerpoint of the presentation given to the attendees at the meeting.

EFF sues feds for info on social-network surveillance

12/02/09: CNet reports that the Electronic Frontier Foundation sued the CIA, the US Department of Defense, Department of Justice, and three other government agencies on Tuesday for allegedly refusing to release information about how they are using social networks (such as Facebook and Twitter) in surveillance and investigations.  (HT to FOIAblog)

Yahoo and Verizon claim their spy capabilities would 'shock' and 'confuse' customers

12/02/09: Wired reports that when a FOIA request was made by Christopher Soghoian asking how much phone companies and internet service providers charge to funnel your private communications or records to US law enforcement and spy agencies, Verizon and Yahoo intervened and filed an objection on grounds that, among other things, they would be ridiculed and publicly shamed were their surveillance price sheets made public.

Supreme Court overturns order releasing detainee photos

11/30/09: SCOTUSblog reports that the Supreme Court on Monday wiped out a lower court ruling in Defense Department, et al.,. v. American Civil Liberties Union, et al. that would have forced the Pentagon to release scores of photos that are said to show abuse of detainees by the US military in Iraq and Afghanistan.  The Justices, in a brief order, vacated the Second Circuit Court decision and told that court to reconsider in the wake of a new law Congress passed to keep those photos from public disclosure.

Declassification order delayed by Obama administration

11/30/09: The Boston Globe reports that millions of pages of 25-year old classified documents that had been scheduled to be declassified by the end of the year will remain secret because the Obama administration has been unable to get the agencies holding the documents to comply with the declassification order.  (HT to FOIAblog)

ACLU seeks to salvage FOIA ruling

11/18/09: SCOTUSBlog reports that the American Civil Liberties Union on Wednesday urged the Supreme Court to leave undisturbed a lower court ruling that limits the government’s power to keep secret photos or documents that reveal official wrongdoing. In a new brief in Defense Department v. ACLU (09-160), which involves attempts by the civil liberties group to require the public disclosure of at least 44 official photos that are said to show abuse of detainees by the US military in Afghanistan and Iraq, the ACLU argued that the Court should deny a Pentagon request to vacate that lower court opinion.

National intelligence director to evaluate CIA missions

11/17/09: The LA Times reports that sensitive CIA operations overseas will face new scrutiny from the nation's intelligence director under a plan approved by the White House and outlined in a memo to the espionage workforce last week.

In 'reverse FOIA,' defense contractors want to stop release of documents

11/16/09: The Blog of Legal Times reports that lawyers in Washington for United Technologies Corp., Pratt & Whitney Division, and Sikorsky Aircraft Corp., two major defense contractors, are fighting the government's planned release of documents under the Freedom of Information Act, saying that the information is confidential and that disclosure should be stopped.

A critical look at Navy v. Egan

11/16/09: Secrecy News reports that a 1988 US Supreme Court decision known as Department of the Navy v. Egan, which has been interpreted to support broad presidential authority over national security generally and over access to classified information in particular, has often been misunderstood and misrepresented, according to a new study by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.

Top national security lawyers blast classified leaks

11/12/09: The Atlantic reports that the general counsels for the DNI, CIA, DHS, DoD, and the head of DOJ's National Security Division spoke for the first time in public, together, at an American Bar Association conference on national security.  They used the opportunity to state that recent leaks of classified information have already compromised intelligence sources and methods, and that the Director of National Intelligence, Dennis Blair, had appointed his top counter-intelligence executive, Robert M. "Bear" Bryant, to come up with better ways of tamping them down.

EPIC sues DHS for information about digital strip search devices

11/10/09: BeSpacific reports that the Electronic Privacy Information Center (EPIC) filed a FOIA lawsuit challenging DHS's failure to make public details about the agency's Whole Body Imaging program.  EPIC demanded that the agency disclose records that describe the scanners' capacity to save and transmit images.

GOP senators want to query attorney general on reporter-shield legislation

11/08/09:  The Washington Post reports that Republicans on the Senate Judiciary Committee want to question Attorney General Eric H. Holder Jr. about his support of a compromise reporters' shield law before they vote on it.  Under the compromise, a "balancing test," in which a judge weighs the importance of the public having certain information against the potential damage such disclosure could do, would not be required when the government shows a judge that the information it seeks by subpoena from a reporter "would materially assist" it in preventing, mitigating or identifying the perpetrator of a terrorist act or significant harm to national security.

Judge snubbed US Islamic groups in secret ruling

11/02/09: Politico reports that in a secret court ruling earlier this year, a federal judge denied a request by three prominent American Muslim organizations to reverse federal prosecutors’ designation of the groups as unindicted co-conspirators in a criminal case alleging illegal support for Hamas, according to a source familiar with the ruling and to indications in court files.

Loosening of FBI rules stirs privacy concerns

10/29/09: The New York Times reports that The FBI recently made public its interpretation of domestic intelligence-gathering when it released, in response to a Freedom of Information lawsuit, its “Domestic Investigations and Operations Guide.” The disclosure of the manual has opened the widest window yet onto how agents have been given greater power in the post-Sept. 11 era.

Opinion: Congress wants it both ways on FOIA

10/26/09: Unredacted has a post arguing that the new FOIA (b)(3) withholding statute that bars the release of pictures of detainees held in US custody, including at Abu Ghraib prison in Iraq frustrates a part of the purpose of FOIA legislation: holding government actors accountable for their conduct.

Musicians call for release of records on Guantánamo detainee treatment

10/22/09: The Washington Post reports that a high-profile coalition of artists -- including the members of Pearl Jam, R.E.M. and the Roots -- demanded Thursday that the government release the names of all the songs that were blasted since 2002 at prisoners for hours, even days, on end, to try to coerce cooperation or as a method of punishment.

Secret Service denies access to White House visitor logs

10/22/09: FOIA Blog reports that despite the Obama administration's recent legal settlement to begin releasing White House visitor logs later this year, it has denied the watchdog group Judicial Watch's recent request for those same records in the meantime.

DOJ indicates it may fight release of Cheney’s CIA leak transcript

10/22/09: Intelligence Daily reports that the Obama administration indicated in court papers it may appeal a federal judge’s ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.

Opinion: Obama wrong to release interrogation memos

10/20/09: CNN has published an op-ed by former CIA Director Michael Hayden, in which he argues that the release of interrogation memos in response to an FOIA request by the ACLU was a bad decision.

New DoD war photo rules rile critics

10/16/09: Politico reports that US military commanders in Afghanistan are retreating somewhat from an effort to ban embedded journalists from publishing photos or video of American soldiers killed in action there, according to ground rules issued Thursday. But the new limitations on embeds – put in place after a flap between the Pentagon and the Associated Press over a photo of a wounded soldier who later died, have elicited deep concerns from military journalists and press advocates.

CCR argues that US cannot keep secret whether it spied on Guantánamo attorneys

10/11/09: The Lift reports that oral arguments in the Center for Constitutional Rights (CCR) warrantless surveillance case Wilner v. National Security Agency (NSA) took place on Friday. The plaintiffs argued that exceptions to FOIA cannot be asserted to shield illegal and unconstitutional conduct and the government is refusing to affirmatively defend the legality of the conduct at oral argument on appeal.

Human rights groups allege abuses of ‘National Security’ defense

10/01/09:  The Lift reports that Amnesty International and several other human rights groups are accusing the Obama administration of abusing the National Security defense by refusing to release documents related to detainee abuses.

DOJ says it’s pushing agencies on openness

10/01/09: ProPublica reports that in a hearing on the Freedom of Information Act, Associate Attorney General Thomas Perrelli told the Senate Judiciary Committee that the Department of Justice is pushing federal agencies to be more transparent.

FBI denies editing Oklahoma City bombing tapes

10/01/09: The Miami Herald reports that the FBI says it did not edit videotapes of the aftermath of the 1995 bombing of the Oklahoma City federal building before turning them over to an attorney who is conducting an unofficial inquiry into the bombing.

Court ruling gives corporations privacy rights

10/01/09:  Privacy Law Blog reports that the Third Circuit's September 22, 2009 decision in AT&T v. Federal Communications Commission has, for the first time, expanded FOIA privacy protections to corporations.

Transparency directives transform DHS

09/29/09: Homeland Security Today reports that new policies from the Obama administration have changed the way that the Department of Homeland Security enforces privacy protections outside and inside its components, according to an annual DHS privacy report. HT to Security Debrief.