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Category Archives: Secrecy

Government Asserts State Secrets Privilege in Defamation Suit Against Non-Profit

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Monday, September 22, 2014 at 11:30 AM

Last week—and in a somewhat unusual development—the Department of Justice filed a motion to intervene, stay, and dismiss a private lawsuit against a non-profit organization, citing the state secrets privilege. In short, the United States believes that the litigation’s further progress might risk the release of national security information.  United Against Nuclear Iran (UANI) is a private non-profit group . . .
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Declassified Articles from the CIA’s In-House Intelligence Journal

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Thursday, September 18, 2014 at 12:41 PM

Via  Steve Aftergood, I learned that the CIA “has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence.”  The articles are here.  I have just skimmed the articles—there appear to be several hundred—and I do not know which ones were previously classified and unavailable to the public.  But on the whole they . . .
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CA2 Affirms SDNY Denial of FOIA Suit for Al-Qahtani Photos

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Tuesday, September 2, 2014 at 11:41 AM

That seems to be the sum and substance of the Second Circuit’s ruling today.  The 3-judge panel’s decision opens: Appellant Center for Constitutional Rights seeks disclosure by the government, pursuant to the Freedom of Information Act (“FOIA”), of certain videos and photographs of a high profile Guantanamo Bay detainee, Mohammed al‐Qahtani, who is believed to be the so‐called “20th hijacker” . . .
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February 2010 OLC Opinion on the Al-Aulaqi Strike and the CIA

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Friday, August 15, 2014 at 9:41 PM

Here it is. The seven-page, heavily redacted legal analysis was apparently released earlier today, as a consequence of the FOIA action brought by the New York Times and the ACLU.  

FOIA Improvement Act of 2014

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Tuesday, August 5, 2014 at 4:30 PM

The FOIA Improvement Act of 2014 (S.2520) (“FIA”) sets out to make various tweaks to a key federal access to information statute, the Freedom of Information Act (“FOIA”). Below, I overview some of the most significant changes the bill would make, and comment on just how dramatic those would be relative to existing law and . . .
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Bringing More Due Process to CFIUS: An Overview of the D.C. Circuit’s Opinion in Ralls

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Thursday, July 17, 2014 at 6:00 PM

Tuesday’s opinion in Ralls v. Committee on Foreign Investment in the United States came as quite a surprise. For the first time, a federal court considered the relationship between due process, on the one hand; and, on the other, the Committee on Foreign Investment in the United States (CFIUS), an interagency mechanism with which the . . .
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The Tanking of US-German Relations: A Recent History in Links

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Thursday, July 17, 2014 at 2:15 PM

If you’ve been focused the last few weeks on ISIS, on Gaza, on the Iran deal, or on the Afghan elections, you might have missed the precipitous decline of U.S.-German relations that is taking place before our eyes—a decline that is occurring almost entirely because of disagreements over intelligence matters. Russell Miller published a lengthy summary of a . . .
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New FOIA Bill

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Friday, July 11, 2014 at 3:13 PM

I’m hearing that the Senate Judiciary Committee is getting ready to consider S.2520, which contains a series of amendments to the Freedom of Information Act. I haven’t studied the bill yet, but it appears to limit existing FOIA exemptions in several new ways. We’ll report more when we figure out exactly what it would do.

Court Demands New Procedures for Challenging No-Fly List Determinations

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Friday, June 27, 2014 at 5:00 PM

As Wells noted a few days ago, the U.S. District Court for the District of Oregon issued an opinion this week in Latif v. Holder, which held unconstitutional certain redress procedures for individuals on the Federal Bureau of Investigation’s No-Fly List.  This post overviews the opinion. Judge Anna Brown begins with a recitation of the . . .
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Guest Post from Jeff Kahn on Latif v. Holder (Striking Down the No-Fly List)

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Wednesday, June 25, 2014 at 2:13 PM

Professor Jeff Kahn (SMU Law, also visiting at W&L Law) writes in with the following guest post on yesterday’s no-fly list decision.  Be sure to check out Jeff’s terrific book on the right to travel and terror watchlists (here). Judge Anna Brown in the U.S. District Court for the District of Oregon issued an important . . .
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A Clue About the Origins of “Imminence” in the OLC Memo?

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Wednesday, June 25, 2014 at 10:37 AM

There’s a lot to discuss about the OLC memo on the al-Aulaqi strike—including, as Ben mentioned yesterday, the origins and significance of “imminence.”  (There’s also excellent analysis over at Just Security, which I recommend to interested readers.) Throughout the OLC memo’s 41 pages, the much-scrutinized term appears several times, often as part of a phrase: “continued and . . .
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Critical Comments by Rahul Sagar on My Post on Kinsley

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Monday, June 2, 2014 at 10:51 AM

Rahul Sagar is Associate Professor at Yale NUS and the author of the terrific and timely Secrets and Leaks: The Dilemma of State Secrecy (reviewed favorably by Steven Aftergood on Lawfare and Eric Posner in TNR).  He writes in with some critical comments on my post last week on Michael Kinsley, to which I have . . .
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Snowden Correspondence with NSA OGC [UPDATED]

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Thursday, May 29, 2014 at 3:45 PM

The ODNI Tumblr site today posted April 2013 e-mail correspondence between Edward Snowden and the NSA’s Office of General Counsel—the only such correspondence NSA says it has found. UPDATE [9:30 p.m.]: Snowden has responded to the release this evening—in a Washington Post interview—and called the release “incomplete.”  See below the fold.     The reason for the release is obvious: debate . . .
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Schoenfeld on the Selective Prosecution of Leakers

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Wednesday, May 28, 2014 at 12:23 PM

Gabriel Schoenfeld, author of the indispensable Necessary Secrets, has a new essay in Hoover’s Emerging Threats series entitled “Secrecy, Leaks, and Selective Prosecution.”  He offers this description of the essay: Does it matter that low-level government officials are prosecuted and sent to prison when they leak classified information, yet high-ranking officials in the White House and . . .
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Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets

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Wednesday, May 28, 2014 at 9:18 AM

Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets: The question is who decides.  It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a . . .
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Is JSOC About to Become More Transparent on Drone Strikes?

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Friday, May 23, 2014 at 4:57 PM

One frequently sees the claim that CIA drone operations should be handed over to the military because the military is more transparent. I have frequently disparaged that argument, not because the CIA is in fact transparent but rather because direct action undertaken by JSOC isn’t transparent either. But might that change soon? According to a . . .
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ODNI Clarifies New Pre-Publication Review Policy

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Sunday, May 11, 2014 at 4:01 PM

On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed “overbroad to the point of practically unenforceable.”   Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than . . .
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The Latest Obama Administration Anti-Leak Initiative

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Friday, May 9, 2014 at 5:28 AM

Charlie Savage reports: The Obama administration is clamping down on a technique that government officials have long used to join in public discussions of well-known but technically still-secret information: citing news reports based on unauthorized disclosures. A new pre-publication review policy for the Office of Director of National Intelligence says the agency’s current and former employees and . . .
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On the New ODNI Media Guidelines

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Tuesday, April 29, 2014 at 10:00 AM

The Office of the Director of National Intelligence last week publicly released a new Intelligence Community Directive (ICD 119) establishing policies for contacts between the media and personnel inside the intelligence community.  ICD 119 received round criticism from the press and advocacy groups for setting up a presumption that only a few senior officials can . . .
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Daniel Byman and My Article in Foreign Affairs on NSA

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Tuesday, April 22, 2014 at 5:27 PM

My Brookings colleague, sometime coauthor, and Lawfare‘s Foreign Policy Editor, Daniel Byman, and I have written a lengthy article Foreign Affairs, on NSA matters. It’s a high-altitude, non-legal look at the issue of how NSA should operate in a world in which it cannot rely to the same degree it traditionally has relied on secrecy, . . .
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