Latest in Secrecy: State Secrets Privilege
The Supreme Court unanimously held that the Foreign Intelligence Surveillance Act does not displace the state secrets privilege.
The court decided that the federal government could invoke the state secrets privilege to block two CIA contractors from testifying about a Guantanamo detainee’s treatment at a CIA black site.
In oral argument in United States v. Zubaydah, the court seemed to take seriously the government’s invocation of the state secrets privilege to protect information that seems very much in the public domain.
The Wikimedia Foundation, which runs Wikipedia, claimed that the NSA’s “Upstream” surveillance program captures its international communications and is a violation of its First Amendment free-speech rights and its Fourth Amendment rights against unreasonable search and seizure.
The court’s ruling in FBI v. Fazaga could have significant implications for future challenges to government surveillance under FISA and to the government’s use of the state secrets privilege.
In a court filing on Aug. 27, Director of National Intelligence Avril Haines asserted state secrets privilege in a civil lawsuit filed by Sakab Saudi Holding Company against Dr. Saad Aljabri, a former Saudi Arabia government official, and two of his sons. The lawsuit alleges that Aljabri defrauded the Sakab Saudi Holding Company and was filed in Massachusetts state court on March 21 and has since been brought before Massachusetts District Court.
Abu Zubaydah, a detainee held at Guantanamo, wants testimony from two former CIA contractors about his treatment at a CIA black site in connection with a criminal inquiry in Poland. The government says their testimonies could expose state secrets.
It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security.
A D.C. District judge ruled yesterday that the CIA can keep nearly all information related to its drone activities and the legal basis for them secret, reports Josh Gerstein of Politico. U.S.
I was honored to be invited to give a keynote speech at an Intelligence Community legal conference last Wednesday, May 6. The speech was entitled Toward Greater Transparency of National Security Legal Work.