Georgetown Security Law Brief

Vote set on controversial South African secrets bill

11/21/11: The Missoulian reports that South Africa's parliament prepared Monday for a vote the following day on a state secrets bill that critics within and outside the governing party said would smother freedom of expression and make it harder to fight corruption. The African National Congress, which holds a majority of parliament's seats, sponsored the bill, making it likely it would become law. The ANC said South Africa needs to update apartheid-era legislation defining state secrets and imposing penalties for their disclosure.

Whistleblower's top-secret clearance is reinstated

11/16/11: The Miami Herald reports that a Marine Corps whistleblower who exposed the service's failure to quickly deliver life-saving armored vehicles and other gear to troops in Iraq can return to work after military authorities reinstated his top-secret security clearance. Franz Gayl, a senior civilian employee, was close to losing his job as a science and technology adviser at Marine Corps headquarters following allegations that an unsecure flash drive had been inserted into his work computers.

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.”

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.

AP review finds no threatened WikiLeaks sources

09/10/11: The Miami Herald reports on the aftermath of the latest WikiLeaks cable release. The cables were published in full, without the redaction of any names. State Department spokeswoman Victoria Nuland branded the action "irresponsible, reckless and frankly dangerous," and the US says the release exposes the names of hundreds of sensitive sources. But an Associated Press review of the sources found several of them comfortable with their names in the open and no one fearing death. Others are already dead, their names cited as sensitive in the context of long-resolved conflicts or situations. Some have publicly written or testified at hearings about the supposedly confidential information they provided the US government.

US AG Holder invokes state secrets privilege in mosque surveillance lawsuit

08/03/11: JURIST reports that US Attorney General Eric Holder invoked the state secrets privilege  Monday to block evidence in a lawsuit against the FBI over its investigation into Muslim mosques. The Department of Justice also filed a motion to dismiss claims and for summary judgment in the US District Court for the Central District of California claiming that without the privileged information many of the claims against the FBI could not continue.

Justices impose minor limitation on state secrets privilege

05/23/11: Wired.com reports that the Supreme Court on Monday imposed a slight limitation on the government’s ability to invoke the state secrets privilege in lawsuits that threaten to expose classified, national security information. The unanimous court found that, if the government is going to withhold evidence by citing the privilege, it is not entitled to monetary damages in contractual disputes. The justices, without questioning the government’s privilege, ruled it would not be fair for the government to win monetary awards if the government was not required to turn over evidence to the other side.

Commentary: When secrecy is a weapon

04/06/11: The Los Angeles Times has published an op-ed by Jameel Jaffer of the ACLU arguing that secrecy in the national security realm harms US democracy. He argues that the public knows too little about the government's national security and counterterrosim policies, and without leaks it would be even more ill-informed. But recent leaks show that government officials feel that certain information must be made public - if through informal channels - even as the organizations that employ them work to quash FOIA lawsuits and other formal mechanisms to achieve disclosure.

Scholarship: Call for papers - "Secrecy, National Security, and the Vindication of Constitutional Law"

02/28/11: Robert Chesney has posted that the International Association of Constitutional Law, Research Group on Constitutional Responses to Terrorism, has announced a call for papers to be delivered at an international conference on “Secrecy, National Security, and the Vindication of Constitutional Law” hosted by Bocconi University in Milan, Italy, on December 1-2, 2011.

Hiding details of dubious deal, US invokes national security

02/20/11: The New York Times reports that Dennis Montgomery, a California computer programmer, won $20 million in government contracts for technology he claimed could catch terrorists that appears to have been a hoax. The DOJ, which in the last few months has gotten protective orders from two federal judges keeping details of the technology out of court, says it is guarding state secrets that would threaten national security if disclosed. But others involved in the case say that what the government is trying to avoid is public embarrassment over evidence that Montgomery bamboozled federal officials.

Ex-CIA agent goes public with story of mistreatment

02/11/11:  The New York Times reports that the CIA invoked state secrets to block a personal injury case by a former CIA employee. Kevin M. Shipp sued the agency in late 2001, claiming it had placed him and his family in a mold-contaminated home in Texas that made them all sick and required them to destroy most of their possessions. The CIA responded by invoking the state secrets privilege and the lawsuit was dismissed without any hearing on the merits. Shipp is contending that CIA officials abused the State Secrets Privilege in an effort to cover up their own negligence.

ACLU testifies before House Judiciary Subcommittee regarding national security and civil liberties

12/09/10: The American Civil Liberties Union will testify today before a House Judiciary subcommittee that the executive branch of the US government has obtained dangerously broad powers. Laura W. Murphy, Director of the ACLU Washington Legislative Office, will also offer a preview of other big issues likely to be faced by the new Congress involving civil liberties and national security.

ACLU appeals CIA rendition case to Supreme Court

12/09/10: JURIST reports that the American Civil Liberties Union on Tuesday filed an appeal with the US Supreme Court to overturn a ruling dismissing its suit over the CIA's extraordinary rendition program. In its petition for certiorari, the ACLU argued that changes in the way the state secrets privilege has been applied warrant a Supreme Court review.

UK court rules July 7 evidence 'must be heard in public'

11/22/10: BBC reports that UK Home Secretary Theresa May has lost a legal bid to force the July 7 inquests to hear top-secret evidence behind closed doors. Lady Justice Hallett, in her ruling on November 3, concluded that the power to exclude the public from certain hearings in the interests of national security did not include "interested persons", such as the bereaved relatives, who were legally entitled to be represented at the inquests. Two Appeal Court judges sitting in the High Court have now upheld that ruling. Fifty-two people died in suicide attacks on three London Underground trains and a bus in July 2005. HT to The Lift.

DC Circuit declines to adopt policy over confidential opinions in Gitmo cases

11/19/10: The Blog of Legal Times reports that the full US Court of Appeals for the DC Circuit this week unanimously declined to adopt a court-wide policy that would give the US Justice Department greater flexibility in incorporating classified opinions in other pending Guantánamo Bay detainee cases.

Amid British settlement on US torture allegations, calls for US to come clean on interrogation policy

11/17/10: The Miami Herald reports that a British government decision to settle a lawsuit by former Guantánamo detainees who claimed they were tortured after they were turnedover to US authorities is bringing renewed attention to US detention policies. The settlements have triggered calls from the American Civil Liberties Union for the Obama administration to stop invoking the state secrets privilege to keep details of what happened to detainees from being aired in American courts.

Supreme Court reviews state secrets privilege in two contractors cases

09/28/10: The Washington Times reports that the Supreme Court will review a longstanding dispute between the Pentagon and two contractors. The issue before the court involves the state-secrets privilege, which typically arises in national security and terrorism cases. In this case, the issue is whether the government's claims about national security have precluded the companies' ability to defend their position. A federal appeals court sided with the government.

“Rendition” challenge scuttled

09/09/10: SCOTUSblog reports that the en banc Ninth Circuit Court on Wednesday dismissed the latest challenge to the legality of the Central Intelligence Agency’s alleged program of “rendition” of terrorism suspects to other countries for questioning and perhaps for torture.   Dividing 6-5, the Court relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a case against a small airplane operator that allegedly was the CIA’s flight crew for those trips.

‘John Doe’ who fought FBI spying freed from gag order after 6 years

08/10/10: Wired reports that the owner of an internet service provider who mounted a high-profile court challenge to a secret FBI records demand has finally been partially released from a 6-year-old gag order that forced him to keep his role in the case a secret from even his closest friends and family. He can now identify himself and discuss the case, although he still can’t reveal what information the FBI sought. Nicholas Merrill, 37, was president of New York-based Calyx Internet Access, when he received a so-called “national security letter” from the FBI in February 2004 demanding records of one of his customers.

08/10/10: The Washington Post reports that following the partial lifting of his gag order 11 days ago as a result of an FBI settlement, Nicholas Merrill can speak openly for the first time about the experience, although he cannot disclose the full scope of the data demanded.

Judge prods Holder in secrets case

03/31/10: Politico reports that a federal judge is offering to drop disclipinary and contempt proceedings against Central Intelligence Agency lawyers and officials, including former CIA director George Tenet, over alleged abuse of the state secrets privilege in a long-running lawsuit, if Attorney General Eric Holder formally notifies Congress and the inspectors general about the alleged misconduct. Judge Royce Lamberth proposed the somewhat unusual compromise in an opinion filed Tuesday in the suit, brought by a former Drug Enforcement Administration agent, Richard Horn.

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.

Will the House play hardball with state secrets?

11/19/09: The Atlantic reports that Democrats on the House Judiciary Committee are preparing for a confrontation with the White House over the state secrets privilege. At an academic conference in Washington today, Rep. Jerrold Nadler (R-NY) noted that the Patriot Act reauthorization, which the White House supports, might come to the floor the same time as House legislation on the state secrets privilege, about which the White House has been publicly silent -- and privately skeptical.

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.

Second Circuit sides with CIA in Valerie Plame First Amendment decision

11/12/09: How Appealling reports that the Second Circuit has ruled that the CIA did not violate the First Amendment when it refused to allow Valerie Plame Wilson to publish information regarding her possible pre-2002 service with the Agency, notwithstanding the prior public disclosure of that information:

Opinion: No role for Congress on state secrets or detention

10/06/09: The American Constitution Society has a post arguing that the Obama administration's new state secrets policy is intended, at least in part, to blunt momentum for the State Secrets Protection Act. The post also argues that the administration's announcement that it does not currently plan to seek new legislation authorizing preventive detention of suspected terrorists suggests that it will limit the nature and scope of terrorist detentions to those already authorized by law.

Event: The Strategy of Secrets: The Use of Classified Information in White Collar Cases

09/15/09: The National Association of Criminal Defense Lawyers is hosting a program on the use of classified information in white collar cases. Participating faculty include Joshua Dratel, Abbe David Lowell, and Edward MacMahon, Jr. The event will be held from 5-7 p.m. on September 16, 2009 at NACDL headquarters in Washington, DC, followed by a wine and cheese reception.

Tenet claims innocence in spy suit flap

08/20/09: Politico reports that former Director of Central Intelligence George Tenet is claiming he should not be punished for urging a federal court to dismiss a lawsuit involving an undercover operative and then failing to to advise the court for six years that the agent's covert status had been officially rolled back.

Kazakhstan high court upholds state secrets conviction of journalist

08/14/09: Jurist reports that The Supreme Court of the Republic of Kazakhstan on Thursday affirmed the conviction of publisher Ramazan Esergepov, sentenced to three years in jail for revealing state secrets in his newspaper. Esergepov was convicted on Saturday for publishing communications purporting to show a connection between the Kazakh business community and the country's intelligence bureau, the National Security Bureau.

Doe v. CIA

08/13/09: A 2^nd Circuit panel has upheld dismissal of a civil suit filed by the family of a former covert operative, approving of the procedures the government and the district court used en route to determining that the state secrets privilege applied and required dismissal in that case.  "Even if [the plaintiff] already know some of [the information the government claims is privileged], permitting the plaintiffs, through counsel, to use the information to oppose the assertion of privilege may present a danger of "[i]nadvertent disclosure" -- through a leak, for example, or through a failure or mis-use of the secure media that plaintiffs' counsel seeks to use, or even through over-disclosure to the district court in camera -- all of which is precisely "the sort of risk that Reynolds attempts to avoid." HT to National Security Advisers.

Opinion: Beijing’s peculiar definition of state secrets

07/24/09: The Financial Times has an opinion piece by Phelim Kine, an Asia researcher for Human Rights Watch, discussing China's byzantine state secrets laws and the recent Rio Tinto case, and arguing that foreign investors, representative governments and international business federations such as the Chambers of Commerce of both the US and the European Union should urge China to narrow its definition of state secrets and demand an end to the routine violation of international due process standards for all suspects in state secrets cases.

Court rebukes Government over “secret law” in Pulungan case

07/20/09: Secrecy News reports that the Seventh Circuit Court of Appeals overturned the conviction of Doli Syarief Pulungan, who had been found guilty of exporting rifle scopes in violation of the International Traffic in Arms Regulations. In its ruling, the court said that the government had failed to properly identify which items are subject to export control regulations, or to justify the criteria for controlling them.

Canadian Federal Court Justice Simon Noel finds embarrassment no reason for security shield

07/10/09: The Canadian Press reports that in his reasons for approving the release of disputed sections of a 2006 inquiry report into the overseas torture of Maher Arar, said there is a "genuine public interest" in openly dealing with the subject of torture of detainees, and the use of information gathered through force. "Protection from embarrassment is not covered in our security laws," Noel wrote.

CIA fights full release of detainee report

06/17/09: The Washington Post reports that the CIA is urging the White House to suppress significant portions of a comprehensive internal account of the agency's interrogation program that describe in graphic detail how the agency handled its detainees, arguing that the material could damage ongoing counterterrorism operations by laying bare sensitive intelligence procedures and methods.

Government rebuffed on detainee files

06/12/09: SCOTUSblog reports that senior U.S. District Judge Thomas F. Hogan has turned down a request by the Obama Administration to restrict detainee lawyers’ access — in virtually all remaining Guantanamo Bay cases — to the files the Administration’s detention task force is assembling on every prisoner remaining at the Navy prison in Cuba.

UK law lords rule against secret evidence

06/10/09: The London Times reports that three men have won a unanimous ruling from a rare panel of nine law lords, Britain's highest court, allowed an appeal by the three suspects on the grounds that they did not know what they were accused of and secret evidence was used against them.

Events: State Secrets Protection Act hearings

Both the House and the Senate will have hearings on their respective versions of the State Secrets Protection Act tomorrow  See our calendar for details.

• House Subcommittee on the Constitution, Civil Rights, and Civil Liberties Hearing on the State Secrets Protection Act of 2009: 2 pm, 2141 Rayburn House Office Building
• Senate Judiciary Committee Markup of the State Secrets Protection Act of 2009: 10am 226 Dirksen Senate Office Building

List of US nuclear sites inadvertently posted online

06/03/09: The Washington Post reports that a draft declaration of U.S. nuclear facilities to the U.N. nuclear watchdog agency -- containing sensitive details about hundreds of civilian nuclear sites across the country -- was mistakenly posted online Monday.

Opinion: Alger Hiss - a case for our time

03/22/09:  The Los Angeles Times features a commentary by Susan Jacoby on the Alger Hiss case's continued relevance.  "The legacy of the Hiss case also sits atop a domestic fault line dividing those who believe in the kind of government activism that defined the New Deal from those who consider government interference with 'the market' an insult to American capitalist values. As the nation struggles with its worst economic crisis since the Depression, we are witnessing a revival of right-wing, anti-New Deal, anti-socialist and even anti-communist rhetoric that seems to belong to another era in the distant past."

Scholarship: "National Security Fact Deference"

"National Security Fact Deference" (Virginia Law Review, 2009) by Robert Chesney (Wake Forest University School of Law).  Judges frequently defer to the executive branch regarding disputed questions of fact in cases involving national security, but they do not frequently offer a coherent justification for doing so. This article tries to alleviate this uncertainty, in hopes of shifting the practice of national security fact deference onto more defensible grounds. Because national security considerations for the most part are sensitive to the circumstances of particular cases, we cannot and should not pursue a single model for resolving fact deference claims.  However, the article offers some theoretical insights on the motivations of judicial deference to the executive. By providing a coherent theoretical justification for supporting such claims in limited circumstances, these insights will help to identify and curb unwarranted claims.

CIA releases six declassified Vietnam histories

03/16/09:  BeSpacific reports that the CIA has released six declassified histories which describe the CIA's role in Indochina during the Vietnam War. These histories written by Thomas L. Ahern, Jr., are based on extensive research in CIA records and on oral history interviews of participants. The release totals some 1,600 pages and represents the largest amount of Vietnam-era CIA documents yet declassified.

Obama declares Intellectual Property treaty "national security secret"

03/13/09: Wired reports that the Obama administration has classified the Anti-Counterfeit trade treaty currently under negotiation with the 27 member nations of the European Union, Japan, South Korea, and other countries as a "national security secret," thereby denying its distribution to FOIA submitters. If ratified, the proposed trade accord would criminalize peer-to-peer file sharing, subject iPods to border searches and allow internet service providers to monitor their customers' communications, leaked documents suggest.

Presidential study directive orders re-think of homeland security and counterterrorism policies and policymaking processes

02/25/09: Secrecy News reports that a Presidential Study Directive, issued by President Obama February 23rd, 2009, tasks his advisor for Homeland Security and Counterterrorism to chair a 60-day interagency review of how best to coordinate international and homeland security policies and processes at tribal, local, state, and federal levels. HT to The Lift.

Holder orders review of all state secrets claims

02/09/09: The Associated Press reports that Attorney General Eric Holder has ordered a review of all claims of state secrets, which were used under President Bush to shield controversial anti-terrorism programs from lawsuits.  Even as officials promised a thorough review, government lawyers continued to invoke the state secrets law Monday in a federal appeals court in San Francisco in a case involving the CIA's extraordinary rendition program. HT to How Appealing.

Court orders search of White House computers

01/15/2009: The New York Times reports that before they leave their offices next week, White House employees must allow their computers to be searched, and they must turn over any devices that may contain some of the possibly millions of e-mail messages that have apparently disappeared, Judge Henry H. Kennedy Jr. of the United States District Court for the District of Columbia ordered Wednesday.

Iranian nuclear workers arrested for espionage

12/11/2008:  CNN reports that several Iranians working directly for the country's nuclear research program were among those arrested recently for funneling information about the program to foreign nations, according to an Iranian media report.  The report said the arrests were made after media reports which claimed the United States and other Western intelligence agencies were trying to spy on Iran's nuclear program.

Update: ACLU protests censorship of Guantanamo detainee testimony

12/7/2008:  Jurist reports that the American Civil Liberties Union has filed a motion with the military tribunal at Guantanamo Bay seeking to change procedures in which the audio feed to observers is stopped and transcripts redacted whenever one of the defendants speaks about the conditions of his detention.  In October, a judge for the US District Court for the District of Columbia granted summary judgment for the Department of Defense, holding that unredacted transcripts allegedly containing evidence of torture used against the high-value detainees held at Guantanamo Bay could be withheld from the ACLU.

Congressmen press Mukasey over comments on counterterrorism officers

12/5/2008:  CNN reports that two key House Democrats demanded in a letter to Attorney General Michael Mukasey on Thursday that he explain his recent comments about U.S. counterterrorism officials' controversial policies on detainee interrogations and terrorist surveillance.  Mukasey had dismissed the notion there was any basis for President Bush to pardon counterterrorism officials.  Wired discusses the controversy here.

Scotland Yard brought in to investigate Whitehall leaks

12/5/2008:  The Herald reports that Scotland Yard has been asked to investigate leaks from a number of different British government offices along the Whitehall corridor.  Some of the information that has recently been leaked to the press has been considered classified while other items, such as budget statements, are more political in nature.  The move has garnered the crticism of several members of parliament who say that bringing in the police has more to do with political embarrassment than national security.

Scholarship: "The Rise and Spread of the Special Advocate"

12/3/2008: "The Rise and Spread of the Special Advocate" (Public Law) by John Ip (University of Auckland).  The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person. The article traces the origins of the special advocate procedure, its establishment in the United Kingdom, and its eventual spread to Canada and New Zealand. It then considers: (1) whether special advocates can be effective in ensuring fairness, given the constraints under which they operate; and (2) whether other issues related to their increased use militate against wider adoption.  HT to National Security Advisors.

Update: Muslim scientist that lost clearance goes home to Egypt

11/28/2008:  The Miami Herald reports that a Muslim scientist whose security clearance was revoked by the Department of Energy has returned to his home country of Egypt after losing his suit and subsequent appeal to regain the clearance.  The DOE claimed that it had evidence that the scientist was a risk to national security, but it refused to turn over the evidence and allow the scientist to defend himself claiming the information was classified.  The scientist maintains that he was retaliated against for comments he made in opposition of the Iraq war and the treatment of Muslims by the President after 9/11.