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Category Archives: State Secrets Privilege: Litigation

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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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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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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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.

Thoughts on Today’s Oral Argument in the State Secrets Case

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Tuesday, January 18, 2011 at 6:42 PM

Having now read the transcript of today’s oral argument in General Dynamics v. United States/Boeing v. United States, I hold strong to my opinion that this is an important case for government contracting law but not an important case from the point of view of the post-9/11 debate regarding the state secrets privilege  (see here, for . . .
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State Secrets Privilege at the Supreme Court Today

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Tuesday, January 18, 2011 at 1:28 PM

Back in September I noted that the Supreme Court granted cert. in a pair of state-secrets privilege (“SSP”) cases, General Dynamics v. United States and Boeing v. United States.  I wrote then that the cases raise an important issue, but not one that goes to the much-discussed controversies surrounding the government’s use of the SSP to . . .
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State Secrets Argument Preview

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Tuesday, January 18, 2011 at 9:25 AM

Lyle Denniston of SCOTUSblog has a useful preview of today’s oral argument in General Dynamics Corp. v. U.S. and Boeing Co. v. U.S., a pair of Supreme Court cases that test the ongoing vitality of the state secrets privilege.

A New Court to Issue Targeted Killing Warrants?

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Monday, December 13, 2010 at 3:02 PM

The New York Times has, for the second time, glibly proposed establishing a new court to authorize killing people. In an editorial today–I am not making this up–the paper publishes a detailed two-sentence road-map for this modest addendum to Article III: We have argued for creating a court that operates in secrecy, like the Foreign Intelligence . . .
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Public Merits Briefing Complete in Uthman v. Obama

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Wednesday, December 8, 2010 at 12:42 PM

Rounding out the public merits briefs in Uthman v. Obama, yesterday the government’s public reply brief became available.  Below we link to that brief, the other two public merits briefs, and Judge Henry Kennedy’s district court opinion.  Oral argument for this appeal has not yet been scheduled. Uthman documents: Government’s public merits brief. Petitioner’s public response brief. . . .
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Some Thoughts on Judge Bates’ Decision

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Wednesday, December 8, 2010 at 7:33 AM

Five thoughts on Judge Bates’ Al Aulaqi decision: First, as far as I’m concerned, there is really only one surprising thing about the decision, whose holdings any Lawfare reader could have anticipated relatively precisely. The surprise is that Judge Bates reached so many of the justiciability questions the government raised about the suit. He could, . . .
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What ACLU and CCR Won in al-Aulaqi

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Tuesday, December 7, 2010 at 6:32 PM

Judge Bates wrote a solid, careful, and in my view persuasive opinion in al-Aulaqi.  The opinion is clearly a victory for the government.  But it was not without small victories for ACLU, CCR, and others who want to establish judicial limits on presidential targeting authorities.  Consider: