Georgetown Security Law Brief

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.

State secrets front and center in Dragnet case

12/14/12:  Wired's Threat Level reports a federal judge on Friday is to hold the first hearing following an appellate court’s decision reinstating allegations that the government is siphoning Americans’ communications from telecoms to the National Security Agency without warrants. The new judge on the case, U.S. District Judge Jeffrey White of San Francisco, notes a 2007 court case in which a federal judge declined the government’s privilege by ruling federal spy laws barred, or “preempted” the doctrine. White notes that an appellate court did not address the issue when that case was on appeal to the 9th U.S. Circuit Court of Appeals.

UK Navy submariner jailed for Official Secrets Act breach

12/13/12:  The BBC reports a Royal Navy petty officer who offered nuclear submarine secrets to MI5 agents posing as Russian spies has been jailed for eight years. Edward Devenney, gathered classified coding material after being passed over for promotion, the court was told. He had been "prepared to betray his country and his colleagues", said Mr Justice Saunders at the Old Bailey. Devenney admitted breaching the Official Secrets Act.

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.

Feds cite state secrets privilege in Dragnet case

10/25/12:  Wired's Threat Level reports the administration is again arguing that a lawsuit accusing the National Security Agency of vacuuming up Americans’ electronic communications without warrants threatens national security and would expose state secrets if litigated. “This case may be dismissed on the ground that its very subject matter constitutes a state secret,” the government said in a legal filing in San Francisco federal court. Brought by the Electronic Frontier Foundation, the case is now four years old and its merits have never been litigated. The civil rights group claims that the major telecoms provided the NSA a warrantless backdoor to the nation’s communication backbone.

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.”

US District Court dismisses lawsuit over FBI spying on Muslims on state secrets grounds

08/16/12: The LA Times reports a federal judge Tuesday dismissed a lawsuit filed against the US government and the FBI over the agency’s spying on Orange County Muslims, ruling that allowing the suit to go forward would risk divulging sensitive state secrets.  US District Judge Cormac J. Carney wrote that “the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”  The judge wrote that he reached the decision reluctantly after reviewing confidential declarations filed by top FBI officials, but he was convinced that the suit involved “intelligence that, if disclosed, would significantly compromise national security.”  The lawsuit was centered on the actions of Craig Monteilh, who says he posed as a Muslim convert at the behest of the FBI to collect information at Orange County mosques.

ACLU asks DC Circuit not to delay ruling in drone dispute

06/29/12: The Blog of Legal Times reports the American Civil Liberties Union (ACLU) asked a federal appeals court in Washington Friday not to delay hearing a dispute over access to any government documents concerning the use of drones to conduct targeted killings.  The Justice Department, representing the CIA, earlier this month asked the US Court of Appeals for the DC Circuit to send the dispute back to the trial court for additional proceedings.  DOJ’s request followed the government’s June 20 filing in a related Freedom of Information Act case pending in Manhattan federal district court.  In the New York filing, DOJ lawyers urged a trial judge to shut down the litigation, saying, among other things, that the “requests involve highly classified information.”

Commentary: The new national security canon

06/28/12: Lawfare features a post by Steve Vladeck discussing how much difficulty plaintiffs have had in suing the US government over post-September 11 governmental abuses.  Vladeck argues the courts have created a “national security canon,” a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment.  The essay suggests that as the national security canon becomes more deeply ingrained, the likelihood increases that it will expand into contexts other than those in which it has thus far been recognized.

Bill to change state secrets privilege introduced in House

06/22/12: Secrecy News reports a bill “to provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege” was introduced in the House of Representatives this week by Representative Jerrold Nadler (D-N.Y.) and several Democratic colleagues.  Essentially, the bill would require courts to render an independent assessment of the validity of a government assertion of the state secrets privilege, rather than simply deferring to the claim.  When the privilege is properly asserted, courts would be required to consider the feasibility of introducing non-privileged substitutes for privileged evidence.  Such measures would make it more likely that cases could proceed to adjudication even when discrete pieces of evidence are found to be privileged.

Restrictions on WikiLeaks documents challenged in court

05/22/12: Secrecy News reports the publication of leaked classified documents by WikiLeaks continues to confound government officials and to generate some unusual legal tangles.  Last month, attorneys for a prisoner detained at Guantanamo Bay asked a federal court to nullify the restrictions that the government has imposed on access to and dissemination of the leaked records, so that the prisoner can prepare a response to the disclosures contained in them.  The government policy on this matter is unworkable and incoherent, argued attorneys for detainee Abdulhadi Omer Mahmoud Faraj in an April 18 motion in the US District Court for the District of Columbia.  Worse, they said, it is damaging and unfair to their client.

European Court of Human Rights to hear rendition case

05/16/12: The Open Society Justice Initiative reports that today the European Court of Human Rights will hear a complaint relating to the extraordinary renditions program in the case of El Masri v Macedonia.  El Masri claims that he was seized by Macedonian agents and held for 23 days, before being handed over to the Central Intelligence Agency and rendered to Afghanistan where he was detained, interrogated, subjected to sustained violence. He previous brought suit in the United States, though the case was dismissed on state secrets grounds.

Court: any partnership between Google and NSA can remain secret

05/11/12: Legal Times reports a federal appeals court in Washington today said any communication about cybersecurity and encryption between Google and the National Security Agency (NSA) can remain secret.  The US Court of Appeals for the DC Circuit upheld the dismissal of a public records suit by an advocate for online privacy rights, the Electronic Privacy Information Center.  Writing for a unanimous three-judge panel, Judge Janice Rogers Brown rejected the argument that any partnership between Google and the NSA should be officially disclosed through a records request because the company and the agency's connection was revealed earlier in news articles.  The court said NSA has never officially acknowledged a collaboration with Google and “the national media are not capable of waiving NSA’s statutory authority to protect information related to its functions and activities.”

Government wants more time to respond in CIA drone case

04/24/12: The Secrecy News blog reports that government attorneys yesterday asked a court for an extension of time to respond to two Freedom of Information Act (FOIA) lawsuits seeking disclosure of records pertaining to “alleged targeted lethal operations” conducted by the CIA, including the killing of Anwar al-Awlaki. The attorneys’ request seems to portend a possible change in the government’s persistent refusal to acknowledge the widely reported fact of the CIA’s use of drones in targeted killing operations. Judge Colleen McMahon granted the Government’s request for an extension until May 21, 2012.

NASA scientist's espionage attempt results in 13-year prison sentence

03/22/12: The Christian Science Monitor reports that a high-profile former government scientist was sentenced Wednesday for attempted espionage, conspiracy to defraud the United States, and tax evasion. Former NASA scientist, Stewart David Nozette, was sentenced to 13 years in prison. In addition, he is required to pay $217,000 to the government. Nozette pleaded guilty in September to providing classified information to a person he believed to be an Israeli intelligence officer, who was actually an FBI agent. He also pleaded guilty in January 2009 to fraud and tax charges.

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.