Georgetown Security Law Brief

In Litvinenko case, secrecy wins out over inquiry

05/20/13:  The New York Times reports ever since Alexander V. Litvinenko died, his supporters have nurtured a hope of one day learning answers to two critical questions: Did the Kremlin plan his poisoning in central London in November 2006? And could British spymasters have prevented it? The answers would have weighty implications for both Moscow and London. Mr. Litvinenko, 43, was a turncoat KGB officer, a whistle-blower assailing organized crime and the Kremlin; he was a newly naturalized British citizen with ties to the late Russian oligarch Boris A. Berezovsky; and according to his widow, he was an employee of the British Secret Intelligence Service, MI6. The toxin that killed him, moreover, was a rare radioactive isotope, polonium 210, the bulk of which is produced supposedly under strict safeguards in Russia. British prosecutors accused another former KGB officer, Andrei K. Lugovoi, of murder — a charge he denied. Last Friday, Robert Owen, the senior judge acting as the coroner at an oft-postponed inquest into Litvinenko's death, ruled in favor of a request from the British foreign secretary, William Hague, to exclude evidence relating to the “possible involvement of Russian state agencies” and to the British authorities’ “knowledge and/or assessment of threats to Mr. Litvinenko’s life.” With those words, the central questions — and the likelihood of answers — were removed from the inquiry.

DOJ asks court to shut down suit over Afghan war memoir

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.”

South Africa 'secrecy bill' approved by parliament

04/26/13:  The BBC reports South African MPs have approved a controversial media bill after a three-year battle over the legislation. Dubbed the "secrecy bill", lawmakers say the Protection of State Information Bill will safeguard state secrets. It has been substantially altered during its passage through parliament. Critics say it still does not provide enough protection for whistleblowers exposing corruption, with penalties of up to 25 years in jail for revealing classified information. It was passed by 189 votes to 74, with one abstention in the National Assembly, where the governing African National Congress (ANC) has an overwhelming majority. State Security Minister Siyabonga Cwele said the law would "strengthen democracy while balancing transparency and protecting our national security and national interests", AFP news agency reports. "There is no-one who can hide corruption through this act," he said. But the main opposition Democratic Alliance (DA) party described the bill as "unconstitutional" and urged President Jacob Zuma to refer it back to parliament for further amendments.

Army judge raises burden in private’s trial on leaks

04/11/13:  The New York Times reports the military prosecutors seeking to have Pfc. Bradley Manning convicted of violating the Espionage Act over his release of secret government files to WikiLeaks will face an additional burden at his court-martial under a ruling on Wednesday by a military judge. The judge, Col. Denise Lind, ruled at a pretrial hearing that prosecutors must prove beyond a reasonable doubt that Private Manning had “reason to believe” that the files could be used to harm the United States or to aid a foreign power. Prosecutors had contended that they should be required to prove only that he willfully disclosed defense-related files to win a conviction under the spying law. Private Manning’s trial is scheduled to begin in June. During a hearing in February, he confessed to having provided to WikiLeaks videos of airstrikes in which civilians were killed, a quarter-million diplomatic cables, assessment files of detainees held at Guantánamo Bay, Cuba, and logs of military incident reports from Iraq and Afghanistan. But he portrayed himself as having thought carefully about the information he was releasing to make sure it would not cause harm. Private Manning has already pleaded guilty to 10 charges, exposing himself to up to 20 years in prison. But the plea was not part of any deal with the government, and prosecutors are pressing forward with trying to win a conviction on more serious charges — including aiding the enemy and multiple counts of violating the Espionage Act — that could result in a sentence of life without parole. The Espionage Act outlaws giving military-related information to someone who is not authorized to receive it. The provision under which Private Manning was charged has two clauses. One covers documents, like code books, and requires only proof of willful disclosure. The other covers generic “information” and also requires proof that the person who released it had reason to believe that it could cause harm. The Espionage Act charge against Private Manning quotes the “reason to believe” language. Thus, Colonel Lind said, the “government elected to charge the communications” under the second provision, and so prosecutors must prove his awareness that his actions would result in harm. A military legal spokesman argued that the decision may make little difference because the judge previously ruled that Private Manning’s motive — whether he thought of himself as trying to help society — was irrelevant to whether he intentionally broke the law. The fact that many of the documents were classified, he said, was a reason for Private Manning to believe that their disclosure could cause harm.

Wikileaks publishes 1.7m US diplomatic records

04/09/13:  The BBC reports Wikileaks has published more than 1.7 million US diplomatic and intelligence reports from the 1970s. They include allegations that former Indian PM Rajiv Gandhi was a middleman in an arms deal and the first impressions of eventual British PM Margaret Thatcher. The documents have not been leaked and are available to view at the US national archives. Wikileaks says it is releasing the documents in searchable form. Much of the work has been carried out by the website's founder Julian Assange while he has been holed up at the Ecuadorean embassy in London. Mr Assange took refuge in the embassy last June to avoid extradition to Sweden, where he is wanted for questioning over allegations that he sexually assaulted two female ex-Wikileaks supporters in 2010. He denies the allegations, and has said they are politically motivated and part of a smear campaign against him and his whistle-blowing website.

NATO manual: Stuxnet attack on Iran nuclear facilities was act of force

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.

Database is shut down by NASA for review

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.

 

Chinese contractor at NASA makes court appearance

03/19/13:  CNN reports a Chinese aerospace contractor, who one senior lawmaker suspects is a spy, made his first appearance in federal court on Monday. Bo Jiang worked at NASA's Langley's Research Center in Hampton, Virginia, and was seized over the weekend as he boarded a flight to Beijing at Dulles airport outside Washington. Jiang was charged with making false statements to U.S. authorities by failing to disclose all of the electronic devices he was carrying on his one-way flight. He was jailed following his appearance in federal court in Norfolk. U.S. Rep. Frank Wolf, R-Virginia, said Jiang recently arranged travel after the lawmaker went public with his concerns about NASA security. Wolf told reporters Monday that he believes Jiang had access to highly sensitive documents, including source codes for high-tech imaging used in missiles, unmanned aerospace equipment and other technology desired by the Chinese government. Wolf, who oversees congressional funding of several agencies, believes Jiang was spying.

CIA must end silence on drone targeted killings, Appeals court says

03/15/13:  Wired's Threat Level reports a federal appeals court reinstated a lawsuit seeking Central Intelligence Agency documents outlining its drone targeted killing program, ruling Friday that the agency’s refusal to acknowledge the program and whether records exist about it contradicts public statements by top government officials, including President Barack Obama. The case concerns a Freedom of Information Act lawsuit brought by the American Civil Liberties Union in which the CIA has been refusing to confirm or deny the covert military use of drones to kill suspected terrorists overseas, despite Obama’s and even a former CIA director’s admission of the agency’s targeted killing program. With Friday’s decision, the ACLU’s case returns to a federal court, where a district judge had sided with the agency’s so-called "Glomar"response which allowed the CIA to neither confirm nor deny the existence of responsive records because doing so would expose national security secrets. The FOIA litigation dates to 2010, when the ACLU sued in federal court seeking records concerning the legal basis for carrying out targeted drone killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out; and the training, supervision, oversight, or discipline of drone operators. Last year, the same appeals court upheld the National Security Agency’s decision, citing Glomar, to withhold from the public documents confirming or denying any relationship it has with Google concerning encryption or cybersecurity.

US responded to FOIA requests at same rate in 2012 as previously, but used state secrets more

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.

Analysis: How a US citizen came to be in America's cross-hairs

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.

Decades-old illegal wiretap inspires demand on CIA for more information

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.

UN investigator urges US investigation, accountability for Bush-era human rights abuses

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.

IAEA head seeks access to Iranian military facility

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.

Libyan man offers to settle UK rendition case

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.

Bradley Manning admits giving trove of military data to WikiLeaks

03/01/13:  The New York Times reports Pfc. Bradley Manning on Thursday confessed in open court to providing vast archives of military and diplomatic files to the antisecrecy group WikiLeaks, saying that he released the information to help enlighten the public about “what happens and why it happens” and to “spark a debate about foreign policy.” Appearing before a military judge for more than an hour, Private Manning read a statement recounting how he joined the military, became an intelligence analyst in Iraq, decided that certain files should become known to the American public to prompt a wider debate about foreign policy, downloaded them from a secure computer network and then ultimately uploaded them to WikiLeaks. Before reading the statement, Private Manning pleaded guilty to 10 criminal counts in connection with the huge amount of material he leaked, which included videos of airstrikes in Iraq and Afghanistan in which civilians were killed, logs of military incident reports, assessment files of detainees, and a quarter-million cables from American diplomats stationed around the world. The guilty pleas exposed him to up to 20 years in prison.

Former SecDef Gates backs drones, but supports more oversight

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.”

Analysis: Debating a court to vet drone strikes

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.

Commentary: President Obama, did or did you not kill Anwar al-Awlaki?

02/08/13:  The Washington Post published an op-ed by David Cole: there are plenty of problems with President Obama's targeted killings in the war against terrorism: The policy remains secret in most aspects, involves no judicial review, has resulted in the deaths of innocent civilians, has been employed far from any battlefield and has sparked deep anti-American resentment in countries where we can ill afford it.  But when it comes to the particular legal issue raised in a recently leaked "white paper" from the Justice Department — namely, whether it is legal to kill Americans with drones — one problem looms largest: The policy permits the government to kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.  There may be extraordinary occasions when killing a citizen is permissible, but it should never be acceptable for the government to refuse to acknowledge the act. How can we be free if our government has the power to kill us in secret? And how can sovereign authority be accountable to the people if the sovereign can refuse to own up to its actions?

Report: CIA renditions aided by over 50 countries

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.

Analysis: Report on targeted killing spurs desire for less secrecy

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.

Israel appears to acknowledge responsibility for Syria airstrike

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.

Drone strike prompts suit, raising fears for US allies

01/31/13:  The New York Times reports the death of Malik Daud Khan, a Pakistani tribal elder, in a CIA drone strike might have remained widely unremarked upon, lost amid thousands of others analysts have tallied in the American drone campaign, had not the British courts been brought into it.  The drone strike, which killed Mr. Khan and dozens of others at a tribal council meeting in North Waziristan in 2011, spawned a lawsuit that accuses British officials of becoming “secondary parties to murder” by passing intelligence to American officials that was later used in drone strikes.  The case has put a spotlight on international intelligence-sharing agreements that have long been praised by officials as vital links in the global fight against terrorist groups, but that rights advocates criticize as a way for Britian and other European countries to reap the benefits of the contentious drone program without its political costs.

Guantánamo judge says ‘external body’ was wrong to censor war court

01/31/13:  The Miami Herald reports the judge presiding at the Sept. 11 death penalty tribunal declined Tuesday to say who cut the audio and video feed to his court for three minutes in an episode that has drawn protest.  The attorney for accused 9/11 mastermind had just spoken the word “secret” on Monday when, as Judge James Pohl put it, “some external body” cut the outside world off from hearing the proceedings. The judge did not issue an explicit order to release a transcript of the three-minute censored portion of the Monday hearing. Nor did he provide a public explanation of who else has the technical power to purposefully cut off the courtroom audio.

Former CIA agent Kiriakou get 30 months for name leak

01/25/13:  The BBC reports a former CIA agent who leaked a covert officer's name to the media has been sentenced to 30 months in prison.  John Kiriakou, 48, pleaded guilty in 2012 to violating an intelligence law. No-one had been convicted under the statute in 27 years.  He admitted passing on the name of a former officer who was part of the interrogation of detainees, including alleged waterboarding.  Defence lawyers argued that Kiriakou was a whistleblower.  US District Judge Leonie Brinkema rejected that argument, and said she would have given him a longer sentence if she could.  A plea deal required the former agent be sentenced to 30 months.

Harsh detention not cause to drop charges in WikiLeaks Case

01/10/13:  The New York Times reports a military judge on Tuesday declined to dismiss charges against Pfc. Bradley E. Manning, a former Army intelligence analyst accused of providing archives of military and diplomatic documents to the antisecrecy group WikiLeaks, despite complaints by his defense team that he had been mistreated while being held at the Marines' brig at Quantico, Va. But the judge, Col. Denise Lind, ruled that brig officials had improperly kept Private Manning on stricter conditions, including procedures designed to prevent potentially suicidal detainees from injuring themselves, for excessive periods. As a remedy, she granted Private Manning 112 days of credit against any eventual prison sentence.  That amounted to little more than a symbolic victory.

Ex-officer is first from CIA to face prison for a leak

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.

Secret Service tapes lost on train under investigation

12/08/12: CNN reports law enforcement and congressional sources tell CNN a contractor working for the US Secret Service accidentally left a pouch containing two computer backup tapes on a train in Washington's Metrorail subway system. The tapes contained very sensitive Secret Service personnel and investigative information, and if accessed could be highly damaging, according to sources. The incident occurred nearly five years ago, in February 2008. It is now the subject of an investigation by the Department of Homeland Security's Office of Inspector General, according to a congressional source. That office would not comment on why the investigation is taking place now, or on any other aspect of the investigation.

Federal plan calls for overhauling secrecy policies

12/6/12:  The New York Times reports declaring the current system for classifying information dysfunctional, a federal advisory panel is calling for the most thorough overhaul of government secrecy since classification procedures were established 70 years ago. The report reflects a view, widely held by current and former national security officials, that far too much information is classified. But it also comes amid an unprecedented crackdown on unauthorized disclosures of classified information, with six prosecutions for leaking to the news media.

Judge accepts terms under which Manning would plead guilty to lesser charges

11/29/12:  The Washington Post reports a military judge on Thursday accepted the terms under which the young Army private charged in one of the largest leaks of classified material in U.S. history would plead guilty to lesser charges, a move that raises questions about whether the government will proceed with its most serious charges. Under the terms, Pfc. Bradly Manning would accept responsibility for providing classified materials to the anti-secrecy group WikiLeaks. The offenses he is willing to plead guilty to carry a maximum term of 16 years in prison.

Sensitive documents found in parade confetti

11/27/12:  CNN reports authorities in Long Island are investigating how shredded confidential police documents ended up as confetti in the annual Macy's Thanksgiving Day parade in New York City, according to Nassau County Police.

Royal Navy submariner admits Official Secrets Act breach

11/13/12:  The BBC reports a Royal Navy submariner has admitted breaching the Official Secrets Act by collecting classified coding programmes that could be useful to UK enemies. Edward Devenney admitted gathering details of "crypto material" - programmes used to encrypt secret data. The petty officer also admitted a charge of misconduct in a public office after he met two people he thought were Russian spies to discuss UK operations. He was arrested in Plymouth in March.

Navy SEALs punished for secrets breach

11/09/12:  The Washington Times reports seven members of the secretive Navy SEAL Team 6, including one involved in the mission to get Osama bin Laden, have been punished for disclosing classified information, senior Navy officials said Thursday. Four other SEALs are under investigation for similar alleged violations, one official said. The SEALs are alleged to have divulged classified information to the maker of a video game called “Medal of Honor: Warfighter.” Each of the seven received a punitive letter of reprimand and a partial forfeiture of pay for two months. Those actions generally hinder a military member’s career.

Private accused of leaks offers partial guilty plea

11/09/12:  The New York Times reports the Army private accused of leaking hundreds of thousands of military and diplomatic documents to the antisecrecy group WikiLeaks has notified a court-martial judge that he may plead guilty to at least some of the actions he is accused of according to his lawyer. The offer is not part of a plea deal with prosecutors in exchange for dropping or reducing some charges or a particular prison sentence. The defendant, Pvt. Manning, would still face trial on a set of other charges.

DHS sued for information about drone loans to police departments

11/01/12:  PressTV reports DHS has been sued by an American Internet privacy advocacy group for its refusal to explain the use of Predator drones inside the United States. The Electronic Frontier Foundation (EFF) announced on Wednesday that it has filed a legal suit against the DHS in an effort to to gain access to information about the killer drones, which have been lent to domestic law-enforcement departments by the federal agency. EFF said that the suit was filed in a San Francisco federal court following DHS’s failure to respond to its Freedom of Information Act request for more details about the function of the pilotless aircraft within US borders. 

Commentary: Still 'secret' after all these years

10/27/12:  Foreign Policy posted an article by William Burr questioning why well-known information is still kept secret.  While collecting and comparing recently declassified documents on the Cuban missile crisis, I reviewed copies of formerly top secret notes prepared by Deputy Secretary of Defense Roswell Gilpatric. Gilpatric was a member of the National Security Council "ExComm" and took circumspect notes of the meetings, mostly relating to actions for which he had follow-up responsibilities. Today, those notes are available in two versions, one released in 2009 under the FOIA by the Department of Defense and the other in the "Sensitive Records on Cuba" collection at the National Archives.

Brennan is compiling the counterterrorism rules

10/25/12:  The Washington Post reports in his windowless White House office, presidential counterterrorism adviser Brennan is compiling the rules for a war the Obama administration believes will far outlast its own time in office, whether that is just a few more months or four more years.  The “playbook,” as Brennan calls it, will lay out the administration’s evolving procedures for the targeted killings that have come to define its fight against al-Qaeda and its affiliates. It will cover the selection and approval of targets from the “disposition matrix,” the designation of who should pull the trigger when a killing is warranted, and the legal authorities the administration thinks sanction its actions in Pakistan, Yemen, Somalia and beyond.

Former CIA operative Kiriakou pleads guilty in leak case

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.

Guantanamo court hears arguments on Government's request to block interrogation records at 9/11 trial

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.

Court considers security measures for 9/11 war crimes trial at Guantanamo

10/15/12: The Washington Times reports a military judge is considering broad security rules for the war crimes trial of five prisoners at Guantánamo Bay charged in the September 11 attacks, including measures to prevent the disclosure of what happened to the accused in the CIA’s secret network of overseas prisons. A pretrial hearing Monday will consider the Government’s request for a protective order preventing the release of classified information during the eventual trial of Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the terror attacks, and four co-defendants. The protective order requires the court to use a 40-second delay during court proceedings so that spectators, who watch behind soundproof glass, can be prevented from hearing — from officials, lawyers, or the defendants themselves — the still-classified details of the CIA’s rendition and detention program.

Ex-CIA man accused of leaks seeks classified data

10/11/12:  The Miami Herald reports lawyers for a former CIA officer accused of leaking the names of covert operatives have told a judge that they will need to expose a wide array of government secrets to provide an adequate defense for their client at trial. Court records unsealed Tuesday in federal court in Alexandria show that lawyers for former CIA officer John Kiriakou want to reveal details of the CIA's capture of an alleged al-Qaida operative known Abu Zubaydah, further details about the life of one of the exposed covert operatives, information about alleged CIA discussions on the use of contractors to torture detainees and other classified information.

Obama issues whistleblower directive to security agencies

10/11/12:  The Washington Post reports President Obama has done what Congress has not — extend whistleblower protections to national security and intelligence employees.  A Presidential Policy Directive issued Wednesday says employees “who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.” Whistleblower protections for employees of intelligence and national security agencies were not included, as advocates had hoped, in the Whistleblower Protection Enhancement Act that passed the House last month and now awaits action in the Senate.

House passes whistleblower protection bill, exempts intelligence officials

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.

Intelligence committee lawmakers won't comment on Netanyahu's assessment of Iranian nuclear program

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.

ACLU: Government releases list of Gitmo prisoners approved for transfer

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.

British Government Seeks to Suppress Dissident’s Alleged Spy Links

09/20/2012:  The BBC reports a police report into the death of ex-Russian spy Alexander Litvinenko will be redacted to omit a section about his alleged links to British intelligence. Mr Litvinenko, 43, is thought to have been poisoned with polonium-210 after having tea with two Russians at a central London hotel in November 2006.

Defense lawyers protest DOJ secrecy in leak prosecution

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.”

Event: National security discussion with Congressman Adam Smith

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 national.security@law.georgetown.edu; please contact gulcnsls@gmail.com or national.security@law.georgetown.edu 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

Pentagon weighing options against ex-SEAL author of bin Laden raid book

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.

WikiLeaks suspect Manning's trial set to begin in February

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.