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Category Archives: Secrecy

The U.S. Intelligence Community and Non-Neutral Principles

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Thursday, February 26, 2015 at 3:30 PM

Last week, Ben’s NSA Constitution Day speech emerged after a long “declassification” process.  One puzzle Ben grapples with in this speech is why reasonable, educated Americans have–and will continue to have–such a high level of discomfort with what the NSA and other intelligence agencies do. The types of activities NSA is asked to do and the secrecy . . .
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The Moral Vacuity of The Intercept

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Thursday, February 26, 2015 at 1:22 PM

In our new book, Whistleblowers, Leaks and the Media, my co-editors and I talk at some length about what we characterize as the “fundamental tension” that lies at the heart of news reporting today involving national security matters.  The tension — between transparency and secrecy — is fundamental for two distinct reasons:  First, because at . . .
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Status of Various Executive Branch Agencies’ Guidelines Regarding U.S. Person Information

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Thursday, February 19, 2015 at 12:26 PM

From the website of the Privacy and Civil Liberties Oversight Board (PCLOB): this helpful table, which was assembled by the Office of the Director of National Intelligence and released today. It describes the status of various agencies’ Attorney General-approved guidelines for collecting, retaining and disseminating U.S. person information pursuant to Executive Order 12,333. As the table reflects, . . .
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The Intercept, SecureDrop, and Foreign Intelligence Services: A Response

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Thursday, February 5, 2015 at 2:30 PM

Those readers who do not spend a lot of time on Twitter may have missed the beating Ben has been taking there for this post last week suggesting that the folks at The Intercept may be overestimating their security capabilities relative to the offensive capabilities of nation state intelligence services. The claim in the original article was . . .
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Harvard Event with Bruce Schneier and Edward Snowden

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Monday, January 26, 2015 at 12:20 PM

On Friday, the former spoke by videolink with the latter, about (unsurprisingly enough) surveillance, privacy and data security. Youtube has a video of their discussion:

You Are a Lawyer in the Executive Branch

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Wednesday, January 21, 2015 at 8:24 PM

Correspondence finds its way into your inbox, bearing the signature of the newly-installed Chairman of the Senate Select Committee on Intelligence, Senator Richard Burr. His letter (per today’s New York Times) last week was sent to the White House, and sets forth an unusual request: In it Senator Burr allegedly asks “the executive branch” to return all copies of . . .
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Reactions to NYT Story on North Korean Cyber Penetration

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Monday, January 19, 2015 at 9:45 AM

David Sanger and Martin Fackler write in the NYT that the NSA “drilled into the Chinese networks that connect North Korea to the outside world, picked through connections in Malaysia favored by North Korean hackers and penetrated directly into the North with the help of South Korea and other American allies,” and also placed malware . . .
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There is Nothing Wrong with Comey Criticizing the NYT

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Friday, January 16, 2015 at 1:30 PM

The U.S. government has effectively granted journalists immunity from prosecution for violating the criminal prohibitions on publication of certain classified information, and it has begun to recognize a norm against forcing journalists to disclose their sources.  As I wrote in Power and Constraint, “Underlying this persistent restraint [by the USG] is a recognition—based in part . . .
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Released: SSCI Detention and Interrogation Study, Along With Minority Views and the CIA’s Response

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Tuesday, December 9, 2014 at 11:19 AM

Here is the long-awaited Executive Summary of the Senate Intelligence Committee’s Study of the CIA’s Detention and Interrogation Program.  The latter includes in a single file a foreword authored by Senator Feinstein, as well as the Study’s findings and conclusions.  Additionally, the Committee also has published these materials: Senator Feinstein’s statement;  a history of key dates in in . . .
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Senators Leahy and Cornyn on CIA’s Proposed E-Mail Destruction Policy

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Tuesday, December 2, 2014 at 10:46 AM

Senators Patrick Leahy and John Cornyn  yesterday joined other Senators in expressing concern over a CIA proposal regarding the destruction of agency E-mail. Their letter to the National Archives and Records Administration (“NARA”)—which evaluates federal bureaucracies’ records preservation policies—says, in pertinent part: We write to express concern about a recent proposal to allow the destruction . . .
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SSCI Leadership on Proposed Changes to CIA E-Mail Destruction Policy

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Wednesday, November 19, 2014 at 6:55 PM

A while back I noted certain 9/11 defense counsel’s objections to a proposed change to the CIA’s policy, regarding the destruction of CIA e-mails. In August, a federal bureaucracy charged with appraising such things—the National Archives and Records Administration (“NARA”)—had endorsed the change. But civil liberties groups, including Open the Government, later disagreed vigorously (and thus, I . . .
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On Journalists’ Claims for Immunity From Legal Accountability

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Monday, November 3, 2014 at 8:37 AM

I think I am unusual among former government officials in arguing that the publication of national security secrets can promote democracy and good government.  Such publications are often costly, sometimes very costly, to national security – more so than is generally realized.  But as I wrote in Power and Constraint, “it does not follow that . . .
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Read Out: Hearing on DOJ’s State Secrets Claim in Restis v. UANI

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Sunday, October 12, 2014 at 4:00 PM

The transcript of Judge Edgardo Ramos’ Wednesday hearing in Restis v. United Against Nuclear Iran (“UANI”) is in—and full of fascinating questions about the government’s use of the state secrets privilege.   As we reported earlier, the case is notable because the government took the unusual (though not completely unprecedented) step of intervening in a private lawsuit to assert the privilege.  The move provoked . . .
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Lawfare’s Digest of Declassified Documents from CIA’s In-House Intelligence Journal

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Friday, October 3, 2014 at 3:15 PM

A few weeks back, in response to a FOIA request, the Central Intelligence Agency made public a trove of documents from Studies in Intelligence, the agency’s in-house intelligence publication. The FOIA-released materials have since been folded over into a larger compendium of declassified material—which Lawfare (in the persons of Taj Moore, Jodie Liu, Clara Spera, and Michael Knapp) has . . .
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Whistleblowers, Leaks and the Media: The First Amendment and National Security

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Thursday, October 2, 2014 at 12:06 PM

Permit me a small amount of self-promotion, with apologies.  But ABA Publishing has, today, released a new book, Whistleblowers, Leaks and the Media: The First Amendment and National Security, of which I am a co-editor.  The book is a joint project of the American Bar Association Standing Committee on Law and National Security, and the . . .
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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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