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Category Archives: Secrecy

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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Second Circuit Orders Release of Al Awlaki Memo

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Monday, April 21, 2014 at 11:35 AM

The U.S. Court of Appeals for the Second Circuit has reversed a lower court opinion and ordered the government to release key portions of the legal memos that lie behind the targeted killing of Anwar Al Awlaki. Here’s the opinion, which I have not yet read, by a unanimous three-judge panel. Here’s coverage from the . . .
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Exclusive: NSA Program Can Target Thoughts of Millions of Targets, Thousands of Americans

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Tuesday, April 1, 2014 at 12:01 AM

The National Security Agency has developed the capability to mine the thought patterns of millions of people simultaneously, collection that may involve thousands of Americans, according to the latest disclosure from former NSA contractor Edward Snowden. An NSA Powerpoint slide refers to the classified program, code-named “MINDPRISM,” as “The Ultimate in Upstream Collection.” A combination . . .
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James Risen Needs to Read the NYT

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Wednesday, March 26, 2014 at 9:42 AM

Andrew Beaujon at Poynter reports that at last week’s Sources and Secrets conference, NYT reporter James Risen, who is fighting a subpoena for information in the Jeffrey Sterling trial, made these remarks: 1)     The Obama administration is “the greatest enemy of press freedom that we have encountered in at least a generation.” 2)     The administration . . .
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A Very Brief Reply to Glenn Greenwald

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Sunday, March 23, 2014 at 9:16 AM

Over at his new publication, The Intercept, Glenn Greenwald has a piece taking to task those criticizing Edward Snowden for news stories that, in fact, reflect the editorial judgments of the newspapers that published them. I actually agree with Greenwald about this. I have criticized both the New York Times and the Washington Post for their editorial judgments . . .
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The NYT on NSA’s Huawei Penetration [UPDATED]

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Saturday, March 22, 2014 at 8:41 PM

David Sanger and Nicole Perlroth report about how the NSA has successfully placed backdoors into the networks of the Chinese Telecommunications giant Huawei for purposes of (a) discerning Huawei’s links to the People’s Liberation Army and (b) preparing for offensive operations in third countries.   It also has some detail (apparently based on leaks other than . . .
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NYU School of Law Event: “‘The Snowden Operation’: A Victory for Privacy Rights or for Russia?”

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Friday, March 14, 2014 at 11:04 AM

  NYU School of Law hosted a debate yesterday between Edward Lucas, Senior Editor of The Economist and author of The Snowden Operation: Inside the West’s Greatest Intelligence Disaster—which Ben reviewed last month—and Stephen Holmes, Professor at NYU Law. The event was moderated by Ryan Goodman, also of NYU Law. Here is the description of the panel . . .
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The SSCI Fracas and the CIA’s Duty to Make Criminal Referrals to DOJ

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Thursday, March 13, 2014 at 4:47 PM

Ken Dilanian has a story on Acting CIA General Counsel Robert Eatinger (whom Caroline Krass, just confirmed, will succeed.)  Eatinger is at the center of the fracas between CIA and SCCI because he sent a criminal referral to DOJ related to the SSCI’s staff’s acquisition of the so-called “Panetta Review,” and because Senator Feinstein essentially accused him of . . .
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Holding Leakers Accountable: Considering New Leaks Laws

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Tuesday, February 25, 2014 at 9:00 AM

Those who leak classified information violate their contracts, the public’s trust, and the law. As for those who publish the leaked information – it’s “complicated,” according to FBI Director James Comey. He was responding recently to House intelligence committee chairman Mike Rogers’ question whether reporters are guilty of crimes in obtaining or publishing classified information. . . .
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