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Category Archives: Secrecy: State Secrets Privilege

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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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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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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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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How It Looked Then: Edward Levi’s 1975 Take on Security, Secrecy, and Accountability

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Thursday, June 27, 2013 at 3:00 PM

Back in 1975, the Attorney General was Edward Levi.  Levi was extraordinarily distinguished, and had been appointed to this position in no small part to bring order and restore trust in the aftermath of tumultuous events of the early 1970s.  Related to that, he was at the helm as the Church and Pike Committees went . . .
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Why a “Drone Court” Won’t Work–But (Nominal) Damages Might…

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Sunday, February 10, 2013 at 5:12 PM

There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due process before the government engages in targeted killing operations, but that, like the FISC, would . . .
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Summary Judgment for the Government in Targeted Killing FOIA Request

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Wednesday, January 2, 2013 at 4:26 PM

Judge Colleen McMahon of the District Court of the Southern District of New York has granted summary judgment to the government in the consolidated FOIA cases brought by the New York Times and the ACLU. The plaintiffs were seeking information about the government’s targeted killing program in the War on Terror. Judge McMahon summarizes the requests . . .
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Supreme Court Oral Argument in Clapper v. Amnesty International This Morning [Updated]

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Monday, October 29, 2012 at 9:34 AM

Proving once again that the judiciary is the most hardcore of the three branches, the Supreme Court remains open for business this morning. The Justices will hear oral argument in Clapper v. Amnesty International, about whether human rights groups have standing to challenge the constitutionality of counterterrorism-related global surveillance, given that the program is secret and . . .
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Bivens and/as Immunity: Richard Klingler Responds on Al-Aulaqi–and I Reply

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Wednesday, July 25, 2012 at 10:56 PM

I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I’d post it in its entirety (below the fold) before replying (also below the fold):

My Thoughts on Al-Aulaqi and the Inversion of Bivens

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Monday, July 23, 2012 at 1:23 PM

Over at the ACSblog, I have a guest post up on Al-Aulaqi v. Panetta and Ben’s suspicion that the lawsuit will go the way of Arar, Lebron, Doe, and Rasul–with courts holding that there should be no Bivens cause of action to challenge national security policies. As my post argues, although Ben’s prediction may well be right, that . . .
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USG Filing in NYT/ACLU SDNY FOIA Suit Re Targeted Killings

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Thursday, June 21, 2012 at 6:15 AM

Here is the Government’s brief in support of its summary judgment motion in response to requests by the NYT and ACLU  for records on targeted killings, especially with regard to U.S. citizens.  This is the brief for which the USG has sought and received several deadline extensions — extensions necessitated by extensive internal deliberations that led some to think . . .
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Appellee Brief Filed in ACLU v. CIA

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Monday, May 21, 2012 at 4:49 PM

Back in March, we shared the appellant’s brief in the D.C. Circuit Court of Appeals case of American Civil Liberties Union v. CIA. The Central Intelligence Agency has filed its respondent brief in that case. The CIA summarizes its argument as follows: Plaintiffs seek disclosure under FOIA from the CIA of records that relate to the . . .
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Appellant Brief Filed in ACLU v. CIA (Drone Program FOIA Request)

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Friday, March 16, 2012 at 10:36 AM

The American Civil Liberties Union has filed its opening brief in its appeal of the District Court of the District of Columbia’s granting of a motion for summary judgment for the Central Intelligence Agency. The case stems from a FOIA request filed by the ACLU on January 13, 2010 requesting government records related to the use of drones . . .
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Peter Margulies Reports on AALS I

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Tuesday, January 10, 2012 at 2:23 PM

Peter Margulies of Roger Williams University School of Law has sent in two accounts of panel discussions at the annual meeting of the American Association of Law Schools. Here is the first:  Federal Courts and National Security: A D.C. Circuit Judge and Scholars Find the Fault Lines In a provocative panel at the American Association of . . .
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The Evolving UK Approach to Litigating Cases Involving State Secrets

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Wednesday, November 16, 2011 at 2:41 PM

The UK for some time has been wrestling with the problem of civil litigation that implicates states secrets.  Foreign Minister William Hague addressed the issue eloquently in this speech, which in relevant part takes up the possibility of using special advocates and other closed-door proceedings to overcome the problem.  Here is the key passage: Our . . .
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More on Releasing the Legal Rationale for the Al-Aulaqi Strike

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Tuesday, October 4, 2011 at 3:07 PM

In the past couple of days, both Jack and I have called for greater transparency concerning the legal rationale for the drones program. Lurking behind both of our posts–and peeking out of both occasionally–is a point that is worth making explicit: There is something deeply wrong about the faux covertness of this program. The government goes . . .
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Ooops! I forgot to Assert the State Secrets Privilege

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Wednesday, August 31, 2011 at 4:37 PM

That’s what somebody in the government is saying today, on reading this Washington Post story about a contract dispute between two aviation companies involved in CIA renditions–a dispute that seems to involve airing a lot of material in public. Money quote: In other cases, the government has invoked the “state secrets” privilege to shut down . . .
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New State Secrets Assertion

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Tuesday, August 2, 2011 at 8:36 AM

Josh Gerstein at the Politico is reporting: The Obama administration is invoking the state secrets privilege to seek dismissal of part of a lawsuit brought by Muslims who claim that the FBI conducted sweeping unconstitutional surveillance of Southern California mosques and those who practice Islam in the region. Attorney General Eric Holder said in papers filed . . .
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State Secrets and Today’s Supreme Court Decision in General Dynamics Corp. v. United States

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Monday, May 23, 2011 at 11:31 AM

The Supreme Court today issued a unanimous opinion in General Dynamics Corp. v. United States, bringing to a close (for now) a long-running dispute between GD and the US Government concerning a contract to build stealth aircraft for the Navy.  In brief, GD contracted to build the A-12 as a stealth plane, but fell behind . . .
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Cert Denied in State Secrets/Rendition Case

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Monday, May 16, 2011 at 12:11 PM

The Supreme Court denied cert this morning in Mohamed v. Jeppesen Dataplan, leaving in place the Ninth Circuit’s en banc opinion affirming dismissal of a civil suit (relating to rendition) on state secrets privilege grounds.