05/01/13: The Blog of Legal Times reports the Justice Department has renewed its effort to shut down a lawsuit in Washington over the scope of information a former US defense intelligence officer can publish in a memoir about service in the war in Afghanistan. DOJ lawyers said in court papers filed April 26 that the government has determined that some of the details in the book, Operation Dark Heart, written by Anthony Shaffer, are classified and cannot be publicly disclosed. “[T]here is no First Amendment right to publish classified information,” DOJ lawyer Scott Risner wrote. Shaffer’s book, DOJ said, reveals “intelligence activities, sources and methods, as well as information about military plans and the foreign activities of the United States that … could reasonably be expected to cause serious identifiable damage to our national security.”
03/25/13: The Washington Times reports a new manual commissioned by NATO’s cyberwarfare center says the cyberattack by the US and Israel that crippled Iran’s nuclear program by sabotaging industrial equipment constituted “an act of force” and was possibly illegal under international law. The Tallinn Manual on the International Law Applicable to Cyber Warfare says, “Acts that kill or injure persons or destroy or damage objects are unambiguously uses of force.” The international group of researchers who wrote the manual were unanimous that Stuxnet — the self-replicating cyberweapon that destroyed Iranian centrifuges that were enriching uranium — was an act of force, but were divided on whether its effects were severe enough to constitute an “armed attack,” which would trigger hostilities under the UN Charter and allow Iran to retaliate in self-defense. Neither Israel nor the United States has publicly acknowledged being behind Stuxnet, but they are widely believed to have been responsible.
03/23/13: The New York Times reports NASA has shut down a large public database and is limiting access to agency facilities by foreign citizens as part of a broader investigation into efforts by China and other countries to get information about important technology. NASA announced the security procedures this week, after the FBI arrested a Chinese citizen at Dulles International Airport in Virginia who had boarded a plane to Beijing. The man, Bo Jiang, had been working as a contractor at NASA’s Langley Research Center in southern Virginia. According to an affidavit filed on Monday, Mr. Jiang is being charged with making false statements to federal agents — failing to disclose that he was carrying a laptop, hard drive and SIM card that were discovered after a search of his belongings. On Wednesday, Maj. Gen. Charles F. Bolden Jr, the NASA administrator, told a House committee that he has ordered a review of the “access which foreign nationals from designated countries are granted at NASA facilities,” and had issued a moratorium on any new requests for access from citizens of several countries, including China, Iran, North Korea, Saudi Arabia and Uzbekistan. But it is another step that General Bolden announced — shutting down a giant NASA database used by scientists, engineers, academics and students — that some have criticized as draconian and unnecessary. The NASA Technical Reports Server is an online repository of millions of journal articles, videos, PowerPoint presentations and other scientific material that for decades has been an indispensable resource on aeronautics and aerospace.
03/11/13: The Associated Press reports the US Government, led by the Pentagon and CIA, censored files that the public requested last year under the Freedom of Information Act (FOIA) more often than at any time since President Barack Obama took office. Overall, the Obama Administration last year answered its highest number of FOIA requests so far, and it slightly reduced its backlog of requests from previous years. But it more often cited legal provisions allowing the government to keep records or parts of its records secret, especially the state secrets privilege. Still, the AP’s analysis showed government released all or portions of the information that citizens, journalists, businesses and others sought at about the same rate as the previous three years.
03/10/13: The New York Times has this in-depth piece reporting on the hunt for Anwar al-Awlaki, the American citizen and al-Qaeda cleric who was killed by a CIA drone strike in Yemen in September 2011. The account of what led to the Awlaki strike fills in new details of the legal, intelligence and military challenges faced by the Obama administration in what proved to be a landmark episode in American history and law. The strike that killed Awlaki — a terrorist leader whose death lawyers in the Obama Administration believed to be justifiable — also killed Samir Khan, though officials had judged he was not a significant enough threat to warrant being specifically targeted. The next month, another drone strike mistakenly killed Awlaki’s 16-year-old son, Abdulrahman, who had set off into the Yemeni desert in search of his father. Within just two weeks, the American government had killed three of its own citizens in Yemen. Only one had been killed on purpose.
03/04/13: The Washington Post has this story about Jim Scott, the son of the late journalist Paul Scott, who is involved in a dispute with the CIA over the Agency’s spying on his father in the 1960’s. In 2007 the CIA declassified a trove of documents popularly called “the family jewels,” which revealed the Agency’s unlawful surveillance of the Scott home in an operation code-named “Project Mockingbird.” For the past five years, Jim has sought to declassify and make public any documents Langley might still have on his father and why he was wiretapped. So far, the CIA has released to Jim a handful of intriguing documents, but Jim has been trying to compel the agency to cough up more. A federal declassification review panel is reviewing Jim’s case. Paul Scott died in 2001.
03/04/13: Reuters reports a United Nations investigator called on the United States on Monday to publish its findings on the CIA’s program of rendition and secret detention of terrorism suspects during the Bush Administration. Ben Emmerson voiced concern that while President Obama has rejected practices conducted under his predecessor, there have been no prosecutions. “Despite this clear repudiation of the unlawful actions carried out by the Bush-era CIA, many of the facts remain classified, and no public official has so far been brought to justice in the United States,” Emmerson said in a report to the UN Human Rights Council, which he will address on Tuesday. Emmerson has served since August 2011 in the independent post set up by the Council in 2005 to probe human rights violations committed in counterterrorism operations worldwide.
03/04/13: The New York Times reports the head of the United Nations’ nuclear regulatory body urged Iran on Monday to permit access by international inspectors to a military site near Tehran to ascertain whether tests have been carried out there on nuclear bomb triggers. International Atomic Energy Agency director Yukiya Amano spoke just weeks after IAEA inspectors returned from talks in Tehran that failed to obtain access to the Parchin site, twenty miles south of Tehran. “I request Iran once again to provide access to the Parchin site without further delay,” Amano said. The talks about Parchin are separate from the negotiations Tehran is conducting with six global powers on the broader question of its disputed nuclear program. Western powers suspect that Iran is seeking the technology for nuclear weapons.
03/04/13: BBC News reports a Libyan man suing the British government for its alleged role in his 2004 rendition to Libya has offered to settle the case. Abdul Hakim Belhaj is also suing former Foreign Secretary Jack Straw and a retired MI6 officer. Belhaj says he wants an apology, an admission of guilt, and nominal damages of one pound ($1.50) from each. The British government has said it is cooperating with investigations into UK involvement in ex-Libyan detainees’ mistreatment. Belhaj, who began legal action last year, says he and his wife were detained by US intelligence officers at Bangkok Airport in March 2004. He was allegedly tortured for several days while his wife Fatima Bouchar, who was five months pregnant, was chained to a wall at a secret prison at the airport.
02/11/13: CNN reports former Defense Secretary Robert Gates argued Sunday number of innocent victims of drone strikes remains “extremely small” and doesn’t outweigh the benefits of using drones against al-Qaeda operatives. But Gates said a better system of checks and balances could be constructive when targeting Americans, aligning himself with lawmakers concerned about unfettered power in the hands of the President. Gates served under George W. Bush during the beginnings of the drone program and later under President Barack Obama as the use of drones spiked. Recently lawmakers, both Democrats and Republicans, have forcefully questioned the use and oversight of the lethal devices. “I’m a big advocate of drones,” Gates said, that they can limit collateral damage more effectively than “any other weapons system.”
02/10/13: The New York Times reports a proposal is gaining steam that would require court approval before targeting American citizens overseas for lethal force. The idea is to apply the model exemplified by the Foreign Intelligence Surveillance Court – created by Congress so that surveillance had to be justified to a federal judge – to the targeted killing of suspected terrorists, or at least of American suspects. A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts. But with the war in Afghanistan winding down, al-Qaeda fragmenting into hard-to-read offshoots, and the 2001 terrorist attacks receding into the past, they said, it is time to consider how to forge a new, trustworthy and transparent system to govern lethal counterterrorism operations.
02/06/13: CNN reports a human rights watchdog group claims as many as fifty-four countries participated in the overseas detention and rendition programs overseen by the CIA in the years following the September 11 attacks. The Open Society Justice Initiative’s report says 136 people were subjected to the process of rendition – the transfer of a terror suspect by the United States to a third country for interrogation – or held in so-called “black site” prisons in third countries run by the CIA. The CIA secretly held detainees in Lithuania, Morocco, Poland, Romania, and Thailand in addition to Afghanistan and Guantánamo Bay. The findings were derived from public sources, including documents from US and foreign governments, inquiries from the European Parliament and Council of Europe, findings from human rights investigations and news reports.
February 06, 2013 at 10:29 AM in Executive Branch, Terrorism / Counterterrorism, Diplomacy / Foreign Assistance, International Law / Law of War / Human Rights, Detainees / Guantanamo, Secrecy / Transparency / FOIA, Afghanistan / Pakistan, Asia, Europe / Eurasia, Middle East / Northern Africa | Permalink
02/06/13: The New York Times has this piece discussing yesterday’s big news revealing the “white paper” describing the Obama Administration’s legal justifications for the use of lethal force against American citizens suspected of being unlawful combatants abroad (the paper is here courtesy of NBC News). This piece discusses the Administration’s having kept its arguments secret, and the fact that its disclosure is fueling greater demand for information.
February 06, 2013 at 10:17 AM in Congress, Executive Branch, Law Enforcement / Criminal Law, Intelligence, Military, Terrorism / Counterterrorism, Politics, International Law / Law of War / Human Rights, Constitutional Law, Secrecy / Transparency / FOIA, Middle East / Northern Africa, Analysis | Permalink
02/03/13: The Miami Herald reports Israeli Defense Minister Ehud Barak indicated Sunday that his country was behind an airstrike on Syria that US officials said targeted anti-aircraft weapons bound for the Lebanese militant group Hezbollah. It was the first public comment by an Israeli official on the Wednesday strike; Israel generally refuses to comment on military operations. “I cannot add anything to what you have read in the newspapers about what happened in Syria several days ago,” Barak said, but he added, “I keep telling frankly that we said – and that’s proof when we said something we mean it – we say that we don’t think [Syria] should be allowed to bring advanced weapons systems into Lebanon.” Israel worries Syria’s civil war will cause President Bashar al-Assad to lose his grip on the country and on its arsenal, including chemical weapons.
01/07/13: The New York Times reports on Jan. 25, John C. Kiriakou is scheduled to be sentenced to 30 months in prison as part of a plea deal in which he admitted violating the Intelligence Identities Protection Act by e-mailing the name of a covert CIA officer to a freelance reporter, who did not publish it. The law was passed in 1982, aimed at radical publications that deliberately sought to out undercover agents, exposing their secret work and endangering their lives.
10/24/12: The New York Times reports prosecutors on Tuesday obtained a guilty plea from a former CIA counterterrorism operative who told a reporter the name of a covert CIA officer involved in the brutal interrogation of detainees during the Bush Administration. John Kiriakou, who worked for the agency from 1990 to 2004, admitted that he had disclosed the name of the former colleague to a reporter and pled guilty to violating the Intelligence Identities Protection Act. Kiriakou is one of six current or former officials to be charged with leaking under President Obama, twice the number of cases brought by all previous presidents combined. As part of the deal, prosecutors recommended a sentence of thirty months in prison, rather than the decades he was potentially facing. Several other charges were dropped.
10/17/12: The LA Times reports three of the five alleged conspirators in the September 11 attacks, including purported mastermind Khalid Shaikh Mohammed, refused to attend a hearing Tuesday on one of the most significant issues in their case: whether potential evidence of torture and other classified material will be discussed publicly in their trial at Guantanamo Bay. The Government wants a protective order prohibiting the release of material from CIA “black sites,” the secret prisons where the defendants were held until 2006. Defense lawyers complain that the restrictions hamper them at trial and block them from even discussing the events with their clients, including Mohammed, who was waterboarded 183 times. Prosecutors don’t want jurors hearing about “enhanced interrogation” (read: torture) and argue it would be a distraction from the determination of guilt or innocence.
10/01/12: The Hill reports the House of Representatives last week approved legislation aimed at beefing up protections for federal workers who point out waste, fraud, and abuse in the government, but passed a version that stripped out Senate language offering similar whistleblower protections for intelligence officials. The Whistleblower Protection Enhancement Act was passed by unanimous consent on Friday and with little debate, but an agreement was reached between House Republicans and Democrats that the language related to intelligence officials should be taken out. A House aide said both parties agreed language related to intelligence officials “should not be included in the bill.” The two Houses may now confer on the bill, or the Senate could decide to accept the House version.
09/24/12: The Hill reports lawmakers on intelligence panels with classified information have declined to verify or contradict Israel’s claims that Iran is close to developing a nuclear bomb. Members of the House and Senate Intelligence Committees refused to comment on Israeli Prime Minister Benjamin Netanyahu’s claims that Tehran is further along than thought. “There may not be full agreement anywhere as to exactly how far along they are, but I think they’re sufficiently far along that [Netanyahu] should be very concerned,” said Congressman Peter King (R-N.Y.), the chairman of the House Homeland Security Committee and a member of the Intelligence Committee. Senator Marco Rubio (R-Fla.), who sits on the Senate Intelligence panel, echoed those remarks. “I don’t comment on anything about the intelligence committee,” Rubio said. Democrats sang a similar tune.
09/24/12: JURIST reports the American Civil Liberties Union announced on Friday that, following a request it made under the Freedom of Information Act (FOIA), the Government has released the names of fifty-five detainees who were approved for release from Guantanamo Bay in 2010 but have yet to be released. The ACLU said it is happy that the government has taken this step, as the government had previously rejected a request for the names on the grounds that it would impair its ability to transfer them peacefully back their home countries. The Guantanamo Bay Review Task Force determined in 2010 that these detainees should be released, but the prisoners are still at Guantanamo. The ACLU said it hopes the release of the names will be a “spur to action” toward the prisoners’ release.
09/19/12: The Blog of Legal Times reports that the defendants in a leak case in Washington are challenging the Justice Department’s recent filing of confidential court papers in the case, saying that the Government should be required to justify the secrecy. Prosecutors handling the case against Stephen Jin-Woo Kim, a former State Department contractor who is charged with disclosing classified information to a reporter, recently filed court papers in the chambers of US District Judge Colleen Kollar-Kotelly. Kim has asked the District Court to require the Government to explain why the defense should be kept in the dark after more than two years of litigation. “The adversary process is the cornerstone of the American system of justice,” defense counsel said in a court filing Monday. “Courts routinely disfavor ex parte proceedings.”
09/05/12: The Georgetown Center on National Security and the Law is hosting a brown bag lunch with Congressman Adam Smith (D-Wash.) next Thursday, September 13, at McDonough Hall at Georgetown University Law Center. Congressman Smith will discuss the Constitution, national security, and the Executive Branch. He will particularly focus on new powers of the President with regard to detention of terrorist suspects, and whether and how we can make the war on terror and our security comport with the guarantees of due process. RSVP to email@example.com; please contact firstname.lastname@example.org or email@example.com with questions.
When: Thursday, September 13, 2012
11:30 AM-12:30 PM
Where: Georgetown University Law Center
600 New Jersey Ave. NW
McDonough Hall, Room 203
Washington, DC 20002
09/01/12: The Washington Times reports The Pentagon is considering legal action against a former Navy SEAL whose book purportedly describes insider details of the raid that killed Osama bin Laden but has not made a final judgment on whether the book actually reveals secrets. Pentagon press secretary George Little said the author, Matt Bissonnette, was deemed to be in violation of two nondisclosure agreements that he signed in 2007 by failing to submit the book for an official security review before it was published. Bissonnette’s lawyer disputed this Friday, saying he believes the decorated former SEAL has “earned the right to tell his story.” Little would not say what legal options the Pentagon is considering or when it might take action.
08/31/12: NPR reports the trial of Bradley Manning, the US Army private accused of passing hundreds of thousands of classified documents to WikiLeaks, has been scheduled to begin in early February. That news came on the last of three days of pretrial hearings held in Fort Meade, Maryland this week. The twenty-two charges against Manning range from aiding the enemy to transmitting defense information, and fraud and related activity in connection with computers. If convicted, he could face a life sentence. Defense lawyers for Manning, who is being confined in Fort Leavenworth, Kansas, have argued for the full release of more than 1,300 emails that relate to the conditions of Manning’s confinement. The judge in the case, Army Colonel Denise Lind, has said she will review those emails to determine whether they should be released.