The Justice Department  is charging a former intelligence officer with leaking classified information to a journalist. The leaks included the names of covert officers and their work in apprehending terrorist suspects.

The officer is charged with divulging to a New York Times reporter the contact information and details of activities of a covert CIA operative. -db

From The Reporters Committee for Freedom of the Press, January 23, 20112, by Andrea Papagianis.

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Prosecutors in the case of a former CIA officer Jeffrey Sterling accused of leaking classified information are attempting to reverse a lower court finding that a New York Times reporter James Risen was exempt from disclosing his sources for a story on a CIA program to disrupt Iran’s nuclear program.

The government prosecutors claim that there is no right for reporters to withhold identities of sources in criminal cases. -db

From a commentary in Secrecy News, January 17, 2012, by Steven Aftergood.

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The Center for Constitutional Rights wants the responsible government agencies to release the interrogation tapes of accused 9/11 hijacker, the only detainee at Guantanamo the government admits to torturing.

Charges that the man plotted to join the 9/11 attacks were dropped by the government in 2008 “without prejudice.” -db

From the Courthouse News Service, January 10, 2012, by Adam Klasfeld.

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The U.S. Circuit Court of Appeals in Washington, D.C. ruled that the CIA had the right to refuse to confirm or deny existence of records named in a Freedom of Information Act request. The refusal is called a Glomar response.

The CIA had refused to provide information to a US. citizen seeking information on his grandfather, an Iceland citizen who allegedly was associated with the Icelandic Communist Party. -db

From The Reporters Committee for Freedom of the Press, December 22, 2011, by You-Jin Han.

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The Central Intelligence Agency says it will now consider a Freedom of Information Act request for documents on Open Source Works, a new CIA open source intelligence division.

An historian had asked for the charter of Open Source Works with the reply that the CIA could not confirm or deny the existence of the charter. -db

From Secrecy News, December 14, 2011, by Steven Aftergood.

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The Obama administration is still insisting that cables WikiLeaks released last year are classified even though the cables were released by the State Department in compliance with a Freedom of Information Act request.

The classified information concerned targeted killings, detention at Guantanamo, torture and rendition. -db

From a commentary for the American Civil Liberties Union, December 7, 2011, by Nathan Freed Wessler and Anna Estevao.

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The Defense Science Board (DSB) reported that the U.S. intelligence community needs a new organization charged with assessing the impact of climate change on national security interests. The CIA already has an Center on Climate Change and National Security but does not share its information or collaborate with groups outside the government.

The DSB said the new organization would establish cooperative relationships with universities, NGOs and the private sector who command significant expertise on climate change. -db

From Secrecy News, November 14, 2011, by Steven Aftergood.

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Some argue that if government classifiers were required to justify their classifications with clear, precise written explanation, there would be less information consigned to secrecy, writes Steven Aftergood for Secrecy News.

As of now, officials get away with saying “it is secret because it’s secret,” but Aftergood thinks that it is not enough to require explanation, that establishing a review process would do more to achieve greater transparency. -db

From a commentary in Secrecy News, October 6, 2011, by Steven Aftergood.

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When a U.S. drone strike killed a U.S. citizen in Yemen who was a prominent al Qaeda terrorist, President Barack Obama would not acknowledge the obvious – that a drone had done the task or that the C.I.A. was involved.

Nor would the Obama administration provide the public with details on the policy behind an execution of an American citizen without due process. -db

From a commentary in The New York Times, October 4, 2011, by Scott Shane.

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All requests for CIA reports on the impact of global warming have been denied on national security grounds prompting skepticism from Steven Aftergood of Secrecy News.

“The CIA response indicates a fundamental lack of discernment that calls into question the integrity of the Center on Climate Change, if not the Agency as a whole. If the CIA really thinks (or pretends to think) that every document produced by the Center constitutes a potential threat to national security, who can expect the Center to say anything intelligent or useful about climate change?” writes Aftergood. -db

From a commentary for Secrecy News, September 22, 2011,  by Steven Aftergood.

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The inter-parliamentary  Council of Europe has issued a draft resolution blasting the U.S. for its “cult of secrecy” and said whistleblowers played a vital tole in challenging government secrecy.

The resolution pointed up the ill effects of secrecy, “In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offenses such as abduction and torture, or to stop victims from suing for compensation.”

From the Secrecy News, September 8, 2011 by Steven Aftergood.

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The Central Intelligence Agency is demanding that a memoir of a former FBI agent be heavily cut before publication. The agent was at the forefront of the fight against Al Qaeda and terrorism and makes some pointed criticisms of CIA errors including the harsh interrogation of the first important captive after 9/11.

People close to the controversy say that much of the information the CIA wants redacted has already been aired in Congressional hearings and other venues. -db

From The New York Times, August 25, 2011, by Scott Shane.

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A federal judge criticized the CIA for ignoring a court order asking the agency to preserve videos of interrogations but did not hold it in contempt. The American Civil Liberties Union had brought the contempt motion in ACLU v. Department of Defense, a Freedom of Information Act lawsuit begun in 2004.

An ACLU spokesperson said, “Yet again, the CIA will get away with denying the public of the best evidence of torture.” -db

From The Reporters Committee for Freedom of the Press, August 3, 2011, by Aaron Mackey.

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A federal judge ordered New York Times reporter James Risen to testify in the trial of former CIA agent Jeffrey Sterling but may protect the identities of his sources. Risen had published a book about the CIA botches during several presidential administrations.

For the Courthouse News Service, Ryan Abbott wrote, “U.S. District Judge Leonie Brinkema agreed with Risen’s request that his testimony be limited to confirming that he wrote a particular newspaper article or chapter of a book, that statements referred to in his articles and books made by unnamed sources were in fact made by unnamed sources, and that statements made by an identified source were in fact made by the identified source.” -db

From the Courthouse News Service, August 1, 2011, by Ryan Abbott.

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A University of Michigan professor, Juan Cole, who suspects he was under investigation by the federal government for his blogs on Mideast issues, is filing a lawsuit to force the government to release any files on him.

The lawsuit came about after a former CIA official said his superiors asked what he knew about Cole and what he could find that would discredit him. ACLU attorney Zachary Katznelson says the lawsuit is to determine “whether or not [the government] in fact investigated an American citizen merely for speaking out and voicing his opinion. If they did, that’s completely illegal.” -db

From Wired, July 13, 2011, by Spencer Ackerman.

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The Obama administration has evidence that senior officials in Pakistan’s Directorate for Inter-Services Intelligence ordered an attack on a journalist, Saleem Shahzad, who had written critical stories about the infiltration of militants in the military.

Shahzad was the 37th journalist killed in Pakistan since 9-11. -db

From The New York Times, July 4, 2011, by Jane Perlex and Eric Schmitt with reporting from Mark Mazetti.

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A Ph.D. student is suing the Central Intelligence Agency to obtain its research into the conservative Catholic group, Opus Dei claiming that the agency could not withhold records over 30 years old that would not compromise national security if released.

The student is researching the U.S. role in the Franco regime in Spain where Opus Dei was active. CIA released 200 pages in response to the request but refused to confirm or deny the existence of other documents. -db

From Fox News, June 1, 2011.

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A new online al Qaeda magazine found itself without 64 pages when British intelligence launched a cyber-attack against the publication called Inspire. The CIA had rejected the proposal to block it out of the need to protect CIA sources and methods. The site itself is an important source of intelligence.

In response to the controversy about U.S. involvement, the Pentagon has developed a list of  approved cyber-weapons and a framework including conditions for attacks and directives on who should make the authorization. -db

From The Washington Post, May 31, 2011, by Ellen Nakashima.

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A federal judge has ordered the FBI and CIA to to comply with a Freedom of Information Act request filed by a attorney seeking documents on the  Oklahoma City bombing.

After the bombing, the attorney’s  brother, who sported a dragon tattoo similar to that of an unidentified accomplice in the bombing, was detained in federal prison.  Authorities said he committed suicide in solitary confinement. -db

From the Courthouse News Service, May 18, 2011, by Jonny Bonner.

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Judicial Watch is filing a request under the Freedom of Information act to obtain photos of Osama bin Laden after he was shot dead in a CIA raid in Pakistan.

Judical Watch president Tom Fitton says the public’s right to know outweighs President Barack Obama’s reasons for withholding the photos, “We are prepared to sue if they don’t respond as they are supposed to under the law. I have not heard anything from the president that would provide a lawful basis for not providing the photos. Not wanting to be seen as ‘spiking the football’ is not a lawful reason to withhold documents under FOIA.” -db

From The Hill, May 5, 2011, by Kevin Bogardus.

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The National Security Archive is seeking a Central Intelligence Agency report on the Bay of Pigs fiasco that took nine years to write and was completed in 1983.

The archive has been seeking the report for the last five and a half years and claims it is the only one of the major investigative reports and studies on the ill-fated CIA-led invasion of Cuba in 1961 yet to be released . -db

From the Courthouse News Service, April 18, 2011.

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National Security Counselors of Virginia has filed three lawsuits against the Central Intelligence Agency for its failure to comply with the Freedom of Information Act.

The violations include failing to provide unclassified information and treating all training materials, guidelines and reference materials provided by CIA FOIA analysts as exempt regardless of content. -db

From a commentary in Unredacted, February 28, 2011, by Nate Jones.

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Secrecy News’ Steven Aftergood says the federal government has once again seen how awkward it is to use the Espionage Act to indict its employees, in this case Jeffrey A. Sterling, a former CIA officer, for allegedly disclosing classified information to the press.

Aftergood says, “An initial difficulty for the prosecution is that the espionage statute cited against Mr. Sterling (18 USC 793) concerns the protection of ‘national defense information.’ It does not mention ‘classified information.’ The two terms are not synonymous.” -db

From a commentary in Secrecy News, February 28, 2011 by Steven Aftergood.

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The American Civil Liberties Union lost a round in federal court when the U.S. Court of Appeals in Washington, D.C. ruled that the government did not have to release information about 14 suspected terrorist leaders and operatives held in Guantanamo. -db

The Reporters Committee for Freedom of the Press
January 20, 2011
By Rachel Costello

The Department of Defense and the CIA do not have to disclose information pertaining to 14 “high value” detainees held at Guantanamo Bay Naval Base under federal Freedom of Information Act, the U.S. Court of Appeals in Washington, D.C., ruled Tuesday in ACLU v. Department of Defense.

In a 2006 speech, President George W. Bush said 14 suspected terrorist leaders and operatives were being held and questioned outside the U.S., but the program was shut down and the detainees were transferred to Guantanamo Bay. There, they were subject to hearings before the Combatant Status Review Tribunals. The ACLU submitted FOIA requests for the full transcripts of the hearings and records provided to the tribunals about the detainees. All information related to the capture, detention and interrogation of the detainees was withheld.

The government relied on FOIA Exemptions 1 and 3 to justify withholding the records. Exemption 1 allows federal agencies to withhold from disclosure records relating to national defense or foreign policy that are properly classified pursuant to executive order. Exemption 3 permits federal agencies to withhold records that are specifically exempted from disclosure by statute.

After initially granting the government’s summary judgment motion in October 2008, the district court reconsidered a number of events. First, a number of executive orders were released that changed the classification of a number of documents and reconsidered the legality of what the government calls “enhanced interrogations.” Also, a Red Cross report on the detainees was leaked and published by the New York Review of Books in April 2009.

In light of the developments, the CIA reconsidered the information requests and released an additional document. Back at the district court, the government again filed for summary judgment, claiming the remaining documents are properly withheld under either Exemption 1 or Exemption 3. Once again, the district court granted the motion and the ACLU appealed.

The ACLU contested the exempt status of the information on several fronts. First, the ACLU argued that the publication of the Red Cross report put the information sufficiently into the public sphere as to render the information officially acknowledged. However, the appellate court held it was not officially acknowledged because there were significant differences between the released information and the information contained in the requested documents.

The president’s prohibition of the future use of certain interrogation techniques also does not diminish the government’s ability to classify information about those techniques and withhold it from disclosure, the court held. The court said the potential illegality of the interrogation techniques does not negate proper classification, pointing to the 1980 D.C. Circuit case Lesar v. Department of Justice, where it ruled that illegal surveillance produced properly classified information that was not subject to disclosure.

The requested information was held to be exempted under Exemption 1 because the CIA satisfied the low obstacle of proving it was “plausible” and “logical” to “justify the invocation of a FOIA exemption in the national security context.” The court established its refusal to penalize “a government agency for voluntarily re-evaluating and revising its FOIA withholdings.” Summary judgment “was warranted on the basis of the CIA’s affidavit alone,” and an in chambers review was not necessary because the affidavit was “sufficiently detailed.”

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The U.S. Central Intelligence Agency  said Chinese bloggers influenced government policy, citing a December incident in which bloggers expressed outrage at the enslavement of mentally retarded men to work at a building materials plant in Sichuan province. -db

Secrecy News
January 19, 2011
By Steven Aftergood

Chinese bloggers “expressed rage and despondence after learning about the plight of 12 mentally retarded men from Sichuan province who were sold into slavery to work at a building materials plant in the Xinjiang Uighur Autonomous Region,” according to a CIA review of the Chinese blogosphere (pdf) during the week of December 10-17, 2010.

The CIA survey portrays Chinese bloggers as alert, engaged and influential in shaping government policy.

“The controversy over the mentally retarded workers set off a passionate discussion in the blogosphere on such topics as the treatment of disabled people in society and the role officials play in allowing workers to be exploited in private enterprises.”

“The public reaction resulting from the story’s popularity in the blogosphere as well as in traditional media almost certainly had an effect on the quick government response,” the CIA report said.

A copy of the report was obtained by Secrecy News. See “This Week in the Chinese Blogosphere: Week Ending 17 December 2010,” CIA Open Source Works, December 17, 2010.

Among several other current news stories, the report said, “Many Chinese Netizens continue to follow and comment on the legal case of Wikileaks.org founder Julian Assange.”

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The former CIA officer accused of leaking classified documents to The New York Times has pleaded not guilty — and his lawyer lashed out at the government for failing to go after a reporter and publisher. -sdl

The Associated Press
Jan. 14, 2011
By Matthew Barakat

Associated Press

The Obama administration indicted a former CIA officer, continuing its campaign to prosecute individuals for leaking classified information. -db

The Reporters Committee for Freedom of the Press
January 7, 2011
By Peter Haldis

A former CIA officer was indicted last month for allegedly providing a New York Times reporter with classified information. He is the latest in a string of leakers prosecuted by the Obama administration.

Jeffrey Sterling, 43, of O’Fallon, Mo., was indicted on 10 counts, including six counts of unauthorized disclosure of national defense information and one count of obstruction of justice. He was arrested Thursday in St. Louis.

Sterling was indicted Dec. 22, 2010, and the indictment was unsealed Thursday.

Although the indictment only identifies the recipient of the leaked materials as “Author A,” it is believed that Times reporter James Risen was the recipient, a fact that government officials confirmed, The Washington Post reported.

“Author A” was “employed by a national newspaper and wrote newspaper articles about the CIA and the intelligence community generally” and “authored a book about the CIA,” according to the indictment.

Risen, who won a Pulitzer Prize in 2006 for a series of articles exposing the National Security Agency’s warrantless wiretap program, was subpoenaed by the Bush and Obama administrations regarding the confidential sources cited in his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.”

Risen fought the subpoenas and never testified. The second subpoena was quashed by a federal judge in November 2010, Risen told the Times. In 2002, the paper published a story authored by Risen about Sterling’s discrimination case against the CIA. The story cited Sterling as a source.

Sterling worked for the CIA from May 1993 until he was fired in January 2002. Even before his firing, Sterling had conflicts with the CIA regarding alleged racial discrimination and the agency’s negative reaction to his proposal for publishing his memoirs.

The indictment alleges that these disputes provided the motive for the leaks.

“Sterling, in retaliation for the CIA’s refusal to settle on terms favorable to him in the civil and administration claims he was pursuing against the CIA, engaged in a scheme to disclose information concerning the classified operational program,” according to the Department of Justice.

While at the CIA, Sterling held a Top Secret security clearance and from November 1998 through May 2000 was assigned to a classified clandestine operational program to conduct intelligence activities related to the weapons capabilities of certain countries, including “Country A,” according to the indictment.

“Country A” is believed to be Iran. In “State of War,” Risen wrote about an alleged CIA program aimed at injuring Iran’s nuclear program.

Sterling is the fifth leaker to be prosecuted by the Obama administration. The others include: former National Security Agency official Thomas Drake, who allegedly sent classified information to an unknown newspaper reporter; Stephen Kim, a former Department of State analyst who allegedly leaked an intelligence report to an unidentified reporter; Bradley Manning, a U.S. Army private alleged to have leaked classified information to Wikileaks; and Shamai Leibowitz, a former FBI linguist who was convicted in May 2010 of charges related to the leaking of classified information to an unidentified blogger and sentenced to 20 months in prison.

Copyright 2011 The Committee for Freedom of the Press     FAC Content Use Policy

A former agent for the Defense Intelligence Agency (DIA) filed a complaint with the federal government contesting the censorship of his memoir, saying that he only used unclassified documents in writing the book. -db

Courthouse News Service
December 20, 2010
By Ryan Abbott

WASHINGTON (CN) – Longtime DIA (Defense Intelligence Agency) officer Anthony Shaffer claims the Defense Intelligence Agency, the Pentagon and CIA retaliated for his work on a task force that identified Mohammed Atta as a security risk, before the Sept. 11 attacks, by unconstitutionally suppressing unclassified material on 250 of the 320 pages of his best-selling book “Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan and the Path to Victory.”

In his federal complaint, Shaffer says that the spy agencies blacked out material from 250 pages of his 320-page book, which offers “a direct, detailed eyewitness account of the 2003 ‘tipping-point’ of the war in Afghanistan and provides an unemotional examination of the events and decisions where mistakes were made in strategy.”

Shaffer says he went through the process of clearing his book with the government before publication. As a lieutenant colonel in the Army Reserves, Shaffer says, he notified his chain of command that he was writing the book, and submitted the first draft for review by “two highly qualified Army Reserve officers – a military attorney with the rank of Major … and a Colonel who works as a civilian contractor for the Director of National Intelligence.”

He says the ghost writer he hired “relied upon unclassified documents” to create the book’s story line and chapter structure. The ghost writer, Jacqui Salmon, then a reporter for the Washington Post, also used independent interviews and read books on the topic, Shaffer says.

On Dec. 26, 2009, an Army Reserve official “stated that based on his review of the manuscript it was his understanding that Shaffer used only unclassified information and open sources in his memoir,” the complaint states.

But after announcing the book’s publication through major media outlets in the spring of 2010, Shaffer says, the DIA demanded “access to the already cleared manuscript.”

Shaffer says the Army Reserve gave the DIA a copy of the book a few months later, and notified him “that there was ‘tremendous pressure’ being brought upon the Army by DIA to withdraw the Reserve’s approval for the publication of the book.”

Shaffer says the Army told him: “There is a ‘huge target on your back.”

The DIA then claimed the book contained classified information and had Shaffer’s publisher pull the book 3 weeks before the publication date.

“Eventually, approximately 250 pages out of 320 pages of Operation Dark Heart were required to contain redactions in order to allegedly prevent the disclosure of classified information. Little to none of this information, however, is actually classified,” Shaffer say.

St. Martin’s Press accepted the edited version of his book, and the Pentagon paid it $50,000 to destroy the nearly 10,000 copies of the book it already had printed, Shaffer says.

Among the material that the agencies demanded be suppressed is that the “The Fort” is the nickname for the NSA; the location of the CIA’s training facility at Camp Peary, Va.; and Shaffer’s cover name in Afghanistan – Chris Stryker – which he took from a John Wayne movie.

Also redacted from the book was “Deliverance” star Ned Beatty’s name, which the Huffington Post called “among the more unnecessary redactions.”

Shaffer says the whole campaign was retaliation for a 2004 spat with the DIA over his security clearance: “DIA’s efforts, in particular, are part of a continuing bad faith retaliatory campaign against Shaffer that dates back to 2004 when DIA initiated a frivolous action against him to revoke his security clearance. The Army Reserve discounted the allegations and in the midst of DIA’s efforts, and with full knowledge of them, nevertheless promoted Shaffer to Lt. Col. In 2005, Shaffer became a national security whistleblower when he publicly claimed that a covert Pentagon task force called “ABLE DANGER”, which he was a part of, had identified Mohamed Atta, the lead hijacker in the September 11th attacks, before the assaults on New York and the Pentagon.”

Shaffer seeks declaratory judgment of his right to publish, and an injunction restraining the DIA, the Pentagon and CIA from interfering with his right to publish unclassified information and from initiating criminal or civil actions against him. He also seeks compensatory damages.

Shaffer is represented by Mark Zaid.

Copyright 2010 Courthouse News Service     FAC Content Use Policy

Three veteran groups and six individual veterans won a judgment in federal court ordering the CIA to produce records about human experiments conducted on soldiers from 1950 to 1975. -db

Courthouse News Service
November 17, 2010
By Annie Youderian

(CN) – A federal magistrate judge in San Francisco ordered the CIA to produce specific records and testimony about the human experiments the government allegedly conducted on thousands of soldiers from 1950 through 1975.

Three veterans groups and six individual veterans sued the CIA and other government agencies, claiming they used about 7,800 soldiers as human guinea pigs to research biological, chemical and psychological weapons.

The experiments, many of which took place at Edgewood Arsenal and Fort Detrick in Maryland, allegedly exposed test subjects to chemicals, drugs and electronic implants. Though the soldiers volunteered, they never gave informed consent, because the government didn’t fully disclose the risks, the veterans claimed. They were also required to sign an oath of secrecy, according to the complaint.

The veterans filed three sets of document requests to find out who was tested, what substances they were given, and how it affected them. Between October and April, the government produced about 15,000 pages of heavily redacted records, most of which related to the named plaintiffs only.

The CIA argued that much of the information requested was protected under the Privacy Act and the Health Insurance Portability and Accountability Act.

U.S. Magistrate Judge James Larson acknowledged that some of the requests were too broad and ordered the veterans to be more specific and to reduce the total number of requests.

For example, Larson said the plaintiffs’ definition of “test program” is “overbroad,” as it not only named experimental programs like “Bluebird,” “Artichoke” and “MKUltra,” but also included “any other program of experimentation involving human testing of any substance, including but not limited to ‘MATERIAL TESTING PROGRAM EA 1729.’”

He ordered the veterans to provide a list of specific test programs and test substances.

But once the plaintiffs narrow their requests, Larson said, they are entitled to most of the information. Each government agency must respond individually to each request, he said, and if an agency denies any request, it must explain — in sufficient detail — why the records are purportedly privileged.

The CIA has already claimed that some documents are protected under the state-secrets privilege, but Larson said the agency needs to be more specific. He asked for a “supplemental declaration explaining with heightened specificity” why the documents are considered state secrets. Because these documents might contain sensitive information, the judge allowed the CIA to file the declaration under seal.

Larson rejected the government’s bid to limit the scope of discovery, saying doing so “removes the remaining hurdle” for the CIA to respond to the veterans’ sets of requests.

“Defendants should respond in earnest to Plaintiffs’ discovery requests, regardless of any ongoing or prior searches, investigations, or litigation,” Larson wrote. He said the government can’t limit disclosure to information about the six individual plaintiffs.

The CIA insisted discovery was unwarranted in its case, because it never funded or conducted drug research on military personnel.

Larson wasn’t convinced.

“[T]his court rejects the conclusion that the CIA necessarily lacks a nexus to Plaintiffs’ claims, and orders the CIA to respond in earnest” to the veterans’ requests, “particularly because defendants have presented evidence that would appear to cast doubt on that conclusion,” he wrote.

The government also tried to avoid deposition, claiming too much time had passed since the alleged experiments, and any witnesses familiar with the projects likely no longer work for the government. The CIA further argued, unsuccessfully, that the court should stay discovery until the Department of Defense completes its investigation of the experiments.

Larson reminded the CIA that it “cannot use the DoD investigation as an excuse to avoid discovery responsibilities.”

He then addressed which topics are fair game for deposition, saying the government must produce witnesses to testify about the following: communication between the VA and test subjects on their health care claims; a 1963 CIA Inspector General report on an experiment called MKUltra, and the basis for each redaction on that report; the scope and conduct of document searches; the doses and effects of substances administered to test subjects; any contract or research proposals concerning the experiments; a confidential Army memo about the use of volunteers in research; all government-led human experiments from 1975 to date, but only those that involve specific drugs; and whether the government secretly administered MKUltra materials to “the patrons of prostitutes” in safe houses in New York and San Francisco, as the veterans claimed.

Judge Larson ruled for the CIA on other issues, however, saying the agency’s not required to testify about test subjects who withdrew their consent or refused to participate; devices allegedly implanted into certain test subjects; the alleged use of patients at VA hospitals as guinea pigs in chemical and biological weapons experiments; or the drug research studies conducted by Dr. Paul Hoch, who was purportedly funded by the government and caused the death of a patient named Harold Blauer.

Though Larson declined to sanction the government, as the veterans sought, he warned that he would impose sanctions for any “future unjustifiable discovery recalcitrance.”

Named plaintiffs are the Vietnam Veterans of America, Swords to Plowshare, the Veterans Rights Organization, Bruce Price, Franklin D. Rochelle, Larry Meirow, Eric P. Muth, David C. Dufrane and Wray C. Forrest.

Copyright 2010 Courthouse News Service      FAC Content Use Policy

The National Archives and Records Administration said they plan to investigate whether the CIA’s destruction of tapes showing brutal interrogations of terror suspects constituted improper destruction of federal records. -db

NBC News
November 10, 2010
By Michael Isikoff

The legal inquiries into the CIA’s destruction of videotapes showing the brutal interrogation of terror suspects may not be over after all.

A day after the Justice Department announced that a special counsel had concluded his investigation into the matter without bringing criminal charges, officials of the National Archives and Records Administration signaled Wednesday that they plan to reopen their own long delayed probe into whether the agency’s actions constituted an improper destruction of federal records.

“We’re not going to let this drop,” Susan Cooper, a spokeswoman for the National Archives told NBC.

On Dec. 10, 2007, a top National Archives official had written the CIA asking it to explain the tapes destruction in light of the Federal Records Act, which states that “no federal records may be destroyed” without agencies getting prior approval from the National Archives to dispose of the material.

That law defines federal “records” broadly to include all “documentary” material “regardless of physical form or characteristics.” Douglas Cox, a law professor who has researched the issue, said that definition unquestionably encompasses videotapes.

A CIA official wrote back to the National Archives in January 2008, saying the agency was “unable to respond” to the inquiry in view of the pending criminal investigation that had recently been announced by then Attorney General Michael Mukasey.

Now that the criminal probe is over, “the matter is back on our radar screen,” the Archives’ Cooper said. If the Archives does not hear back from the CIA shortly with an explanation, the Archives plans to follow up and seek the agency’s justification for destroying “documentary” material without getting prior approval. It will then determine if any further action is warranted, she said.

Agency officials have acknowledged that the tapes destroyed in November 2005 involved hundreds of hours of material showing the interrogations, including waterboarding, of two “high value” detainees, alleged al-Qaida operatives Abu Zubaydah, and Abd Al Rahim al-Nashiri. CIA officials have said the tapes were destroyed because they were concerned that, if they were ever released, they could subject CIA interrogators to reprisals.

But internal emails released earlier this year under a Freedom of Information Act request show that the agency official who ordered the destruction had expressed concerns that if the images were disclosed “out of context, they would make us look terrible; it would be devastating to us.”

As a practical matter, the National Archives may not have much leverage over the CIA. If it finds a violation, it could refer the issue back to the Justice Department for the possible imposition of civil fines against the individuals responsible.

But Cox, an associate professor of the City University of New York School of Law, said the issue is enormously important as a precedent. He told NBC that failure by the Archives to enforce the Federal Records Act in this case could “embolden the CIA” and “open the door” for the destruction of far more material.

In a 48-page article titled “Burn After Viewing: The CIA’s Destruction of the Abu Zubaydah Tapes and the Law of Federal Records,” to be published this spring by the Journal of National Security Law & Policy, Cox writes that internal CIA emails indicate that agency lawyers originally viewed the tapes as official records and even admonished officers to preserve and catalogue them. But by September 2002, agency lawyers reversed their position after agency officials expressed concern that their existence could pose a “security risk” for the officers involved in the interrogations, Cox wrote.

“The end of the DOJ’s criminal investigation should not be the end, but the beginning of the inquiry into the CIA’s destruction of the … tapes,” Cox writes in the article, which he shared with NBC News.

When first questioned about the issue in December 2007, an agency spokesman said the CIA did not view the tapes as federal records “as defined by the Federal Records Act” without offering an explanation.

Asked for comment Wednesday about the matter, CIA spokeswoman Marie Harf said, “Since the Department of Justice has not yet fully completed its investigation into the former detention program, it would be inappropriate at this point to comment on the NARA request.” (Harf was referring to a broader investigation by the same Justice Department special counsel, John Durham, into allegations of CIA abuse of terror suspects.)

The National Archives move to revive the matter is one of only a number of arenas where the tapes destruction may still prove troublesome for the agency. A top ACLU lawyer told NBC that the organization will soon urge a federal judge to hold the CIA in contempt for destroying records sought by a Freedom of Information Act lawsuit seeking material about abuse of detainees.

In addition, Stephen Reyes, the military lawyer for one of the waterboarded detainees, al Nashiri, said the issue will be a central part of any defense of his client. Al Nashiri potentially faces the death penalty in a trial before a military commission and his claims of brutal treatment by government interrogators could be a central part of his defense. The CIA’s actions constituted “the intentional destruction of exculpatory evidence,” said Reyes.

Copyright 2010 msnbc.com     FAC Content Use Policy

An ACLU director at the Center for Democracy says that a new film, Fair Game, about Joe Wilson and Valerie Plame, illustrates that government secrecy has become the norm and transparency the exception. -db

American Civil Liberties Union
Commentary
Nov 5, 2010
By Jameel Jaffer

Which secrets should be kept, and which should be exposed? Those questions are at the heart of Doug Liman’s new film, Fair Game, which tells the story of Joe Wilson and Valerie Plame.

Joe Wilson, remember, was the former U.S. diplomat who exposed one of the many false claims made by the Bush administration in the lead-up to the war in Iraq. Valerie Plame is Wilson’s wife, a covert CIA operative whose identity the Bush administration disclosed to reporters in an effort to retaliate against Wilson.

The film is about Joe Wilson and Valerie Plame, but it’s also about secrecy. The Bush administration gathers evidence to support its claim that Iraq presents an imminent threat to the United States and its allies. The intelligence is manipulated, and the evidence is false, but the public is told only the rotten conclusion — that Iraq has sought yellowcake uranium from Niger — and the public is of course not in any position to evaluate that claim, because the evidence to support it is secret. Joe Wilson exposes the truth; he pierces the secrecy that conceals government misconduct. He’s a whistleblower in the best sense of the word.

But of course Joe Wilson isn’t the only one in the film who pierces secrecy. When Joe Wilson exposes the truth about the yellowcake claim, the Bush administration decides to discredit him by exposing the truth about his wife. Joe Wilson has a secret, too, and the government exposes it. Lewis Libby and Karl Rove are whistleblowers in a different sense of the world. When they pierce secrecy, it is an extension of government misconduct that they’re already engaged in.

There’s a sense in which these two narratives — or these two sides of Liman’s narrative — are emblematic of twin political shifts that have taken place over the last decade years. The public knows less and less about government policy; government secrecy is increasingly the norm, and transparency the exception.

At the same time, the government knows more and more about individual citizens; government surveillance is increasingly pervasive, and increasingly intrusive. These twin shifts reverse the proper relationship between a democratic government and its citizens. It’s supposed to be the government that’s transparent and accountable to the citizenry, but increasingly transparency and accountability work only in the other direction.

As government secrecy has become the norm, particularly on issues relating to national security, we’re increasingly reliant on whistleblowers to provide us with information. Without leaks to the media, we wouldn’t know about the Abu Ghraib abuses, we wouldn’t know about the NSA warrantless wiretapping program, and of course we wouldn’t know about the yellowcake scandal. It’s worth asking whether this is good for our democracy.

And as government surveillance has become the norm, citizens are also more and more vulnerable to government power. Valerie Plame is an extreme case, because her secret was one that, when exposed, almost completely destroyed her life.

But the government knows more and more of our secrets — at the very least, it knows who we call overseas, it knows who we correspond with by email, it has access to our banking records, our telephone records, our credit records, our internet surfing histories. With information comes power; in this context, the power to expose is the power to destroy. Here, too, it’s worth asking whether this is good for our democracy.

Copyright 2010 American Civil Liberties Union     FAC Content Use Policy

The CIA has downplayed WikiLeaks’ latest release, a secret CIA analysis showing the extent of U.S. presence as an exporter of terrorism. -db

Washington Post
August 26, 2010
By Ellen Nakashima

The United States has long been an exporter of terrorism, according to a secret CIA analysis released Wednesday by the Web site WikiLeaks. And if that phenomenon were to become a widely held perception, the analysis said, it could damage relations with foreign allies and dampen their willingness to cooperate in “extrajudicial” activities, such as the rendition and interrogation of terrorism suspects.

That is the conclusion of the three-page classified paper produced in February by the CIA’s Red Cell, a think tank set up after the Sept. 11, 2001, attacks by then-CIA Director George J. Tenet to provide “out-of-the-box” analyses on “a full range of analytic issues.”

Titled “What If Foreigners See the United States as an ‘Exporter of Terrorism’?,” the paper cites Pakistani American David Headley, among others, to make its case that the nation is a terrorism exporter. Headley pleaded guilty this year to conducting surveillance in support of the 2008 Lashkar-i-Taiba attacks in Mumbai, which killed more than 160 people. The militant group facilitated his movement between the United States, Pakistan and India, the agency paper said.

Such exports are not new, the paper said. In 1994, an American Jewish doctor who had emigrated from New York to Israel years earlier opened fire at a mosque at the Tomb of the Patriarchs in Hebron, killing 29 Palestinian worshippers. The rampage by Baruch Goldstein, a member of the militant group Kach founded by the late Meir Kahane, helped trigger a wave of bus bombings by the extremist Palestinian group Hamas in 1995, the paper noted.

As WikiLeaks disclosures go, this paper pales in comparison to the organization’s recent releases. Last month the group published 76,000 classified U.S. military records and field reports on the war in Afghanistan. That disclosure prompted criticism that the information put U.S. troops and Afghan informants at risk, along with demands from the Pentagon that the documents be returned. WikiLeaks says it is still planning to release 15,000 more Afghan war records that it has been reviewing to redact names and other information that could cause harm.

CIA spokeswoman Marie Harf played down the significance of the paper: “These sorts of analytic products – clearly identified as coming from the Agency’s ‘Red Cell’ – are designed simply to provoke thought and present different points of view.”

While counterterrorism experts focus on threats to the homeland, al-Qaeda and other terrorist groups “may be increasingly looking for Americans to operate overseas,” the paper said.

And if the made-in-America brand becomes well-known, foreign partners may become balky, perhaps even requesting “the rendition of U.S. citizens” they deem to be terrorists. U.S. refusal to hand over its citizens could strain alliances and “in extreme cases . . . might lead some governments to consider secretly extracting U.S. citizens suspected of foreign terrorism from U.S. soil.”

Copyright 2010 The Washington Post Company   FAC Content Use Policy

Through its Freedom of Information Act lawsuit, the Electronic Frontier Foundation has revealed that the FBI and CIA are aggressively perfecting their ability to probe social networks and the Internet for intelligence data much of which is outside the law enforcement context. -db

Electronic Frontier Foundation
Commentary
August 16, 2010
By Tim Wayne

In the midst of recent controversies over Facebook’s privacy settings, it’s easy to forget how much personal information is available from other sources on the Internet. But the government remembers. EFF recently received a number of documents from the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) highlighting the government’s ability to scour not only social networks, but record each and every corner of the Internet. These documents were released in the second of a series of government disclosures resulting from EFF’s Freedom of Information Act (FOIA) lawsuit in which EFF, with the help of UC Berkeley’s Samuelson Clinic, sought information on the procedures and guidelines employed by government agencies when conducting social network monitoring or investigations.

As an example of the government’s substantial information collection capability, several documents [PDF] in the CIA’s disclosure discuss the CIA’s so-called Open Source Center, established in 2005, which has been collecting information from publicly accessible Internet sources such as blogs, chat rooms and social networking sites, in addition to monitoring radio and television programs. The Open Source Center’s website, opensource.gov, bills itself as the “US Government’s premier provider of foreign open source intelligence.” It is accessible to almost 15,000 local, state, and federal government employees and offers products ranging from reports and analysis on publicly available information dating back to the mid-90s, video reports and internet clips, translations, and media mapping and hot spot analysis.

In the other document [PDF] included in this release, FBI emails reveal the FBI’s interest in the University of Arizona’s Dark Web Project, an attempt by computer scientists to “systematically collect and analyze all terrorist-generated content on the Web.” Information in the document describes the Dark Web Project as especially effective in employing spiders to search Internet forums and find hidden web sites in the “corners of the Internet.” In addition to being able to search the Internet for content, the Dark Web Project is developing a tool called Writeprint that claims to help identify the creators of anonymous online content. The FBI emails reveal an interest in applying the Dark Web Project’s tools to the FBI’s own “operational analysis and exploitation of data, including web forums.”

As EFF and the Samuelson Clinic continue to seek information about law enforcement investigation techniques used on the Internet, we hope to learn more about how the government uses this information and especially how long it plans to keep it. In the meantime, however, it is clear that government investigators are collecting a wealth of information though the Internet in general and outside of the law enforcement context. It is also a good reminder that while social networks and other websites have privacy settings, the Internet does not. Stay tuned here for the next release.

Copyright 2010 Electronic Frontier Foundation

A federal judge in New York has decided that he lacks the authority to order the government to disclose information regarding the treatment of Sept. 11 detainees – even if the government’s actions were unlawful.

The Reporters Committee for Freedom of the Press

July 20, 2010

By Brian Westley

“Courts are not invested with the competence to second-guess the CIA Director regarding the appropriateness of any particular intelligence source or method,” wrote U.S. District Court Judge Alvin K. Hellerstein.

Thursday’s ruling comes in response to a Freedom of Information Act request by the American Civil Liberties Union for documents detailing the government’s treatment of suspected terrorists, including records related to the destruction of videotapes documenting the interrogations. A criminal investigation into why the tapes were destroyed is ongoing.

The ACLU contends that the government’s treatment of detainees violated both domestic and international law. Therefore, according to the ACLU, the information should not be considered “intelligence sources and methods” that are exempt from disclosure under federal public records law.

“There is no question that the CIA has authority under the law to withhold information relating to ‘intelligence sources and methods,’” said ACLU Deputy Legal Director Jameel Jaffer. “But while this authority is broad, it is not unlimited, and it certainly should not be converted into a license to suppress evidence of criminal activity.”

The case focused on a FOIA exemption that is broadly worded to cover information “specifically exempted from disclosure by statute.” The Supreme Court has held that the National Security Act, which calls for the Director of Central Intelligence to protect “intelligence sources and methods,” qualifies as a statutory exemption.

In Thursday’s ruling, Judge Hellerstein wrote that there is no basis for the ACLU’s argument that statutory exemptions must be limited to “lawful” intelligence sources.  Hellerstein said that to insert such “limiting language” into the exemption would “confer an unwarranted competence to the district court to evaluate national intelligence decisions.”

“Declining to reach the legality of the underlying conduct is not, as Plaintiffs asserted at oral argument, an abdication of the Court’s responsibility under the statutory structure,” the judge wrote. “It is the result commanded by the statute.”

A lawyer for New York Times reporter James Risen says he will honor his commitment to keep his sources confidential in resisting a subpoena to provide documents about his 2006 book about the Central Intelligency Agency.  -db

The New York Times
April 28 2010
By Charlie Savage

WASHINGTON, D.C. — The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.

The author, James Risen, who is a reporter for The New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, “State of War: The Secret History of the C.I.A. and the Bush Administration.” The chapter largely focuses on problems with a covert C.I.A. effort to disrupt alleged Iranian nuclear weapons research.

Mr. Risen referred questions to his lawyer, Joel Kurtzberg, a partner at Cahill Gordon & Reindel L.L.P., who said that Mr. Risen would not comply with the demand and would ask a judge to quash the subpoena.

“He intends to honor his commitment of confidentiality to his source or sources,” Mr. Kurtzberg said. “We intend to fight this subpoena.”

The subpoena comes two weeks after the indictment of a former National Security Agency official on charges apparently arising from an investigation into a series of Baltimore Sun articles that exposed technical failings and cost overruns of several agency programs that cost billions of dollars.

The lead prosecutor in both investigations is William Welch II. He formerly led the Justice Department’s public integrity unit, but left that position in October after its botched prosecution of Senator Ted Stevens of Alaska.

Matthew A. Miller, a Justice Department spokesman, declined to discuss the subpoena to Mr. Risen or to confirm its existence. “As a general matter, we have consistently said that leaks of classified information are a matter we take extremely seriously,” he said.

Mr. Risen and a colleague won a Pulitzer Prize for a December 2005 New York Times article that exposed the existence of the National Security Agency’s warrantless surveillance program. While many critics — including Barack Obama, then a senator — called that program illegal, the Bush administration denounced the article as a damaging leak of classified information and opened an investigation into its sources. No one has been indicted in that matter.

The second chapter in Mr. Risen’s book provides a detailed description of the program. But Mr. Kurtzberg said the Justice Department was seeking information only about Mr. Risen’s sources for the ninth chapter, which centers on the C.I.A.’s effort to disrupt Iranian nuclear research. That material did not appear in The Times.

The book describes how the agency sent a Russian nuclear scientist — who had defected to the United States and was secretly working for the C.I.A. — to Vienna in February 2000 to give plans for a nuclear bomb triggering device to an Iranian official under the pretext that he would provide further assistance in exchange for money. The C.I.A. had hidden a technical flaw in the designs.

The scientist immediately spotted the flaw, Mr. Risen reported. Nevertheless, the agency proceeded with the operation, so the scientist decided on his own to alert the Iranians that there was a problem in the designs, thinking they would not take him seriously otherwise.

Mr. Risen described the operation as reckless, arguing that Iranian scientists may have been able to “extract valuable information from the blueprints while ignoring the flaws.” He also wrote that a C.I.A. case officer, believing that the agency had “assisted the Iranians in joining the nuclear club,” told a Congressional intelligence committee about the problems, but that no action was taken.

It is not clear whether the Iranians had figured out that the Russian scientist had been working for the C.I.A. before publication of Mr. Risen’s book.

The Bush administration had sought Mr. Risen’s cooperation in identifying his sources for the Iran chapter of his book, and it obtained an earlier subpoena against him in January 2008 under Attorney General Michael B. Mukasey. But Mr. Risen fought the subpoena, and never had to testify before it expired last summer. That left it up to Mr. Holder to decide whether to press forward with the matter by seeking a new subpoena.

If a judge does not agree to quash the subpoena and Mr. Risen still refuses to comply, he risks being held in contempt of court. In 2005, a Times reporter, Judith Miller, was jailed for 85 days for refusing to testify in connection with the Valerie Plame Wilson leak case.

Department rules say prosecutors may seek such subpoenas only if the information they are seeking is essential and cannot be obtained another way, and the attorney general must personally sign off after balancing the public’s interest in the news against the public’s interest in effective law enforcement.

Congress is considering legislation that would let judges make that determination, giving them greater power to quash subpoenas to reporters. The Obama administration supports such a media-shield bill, and the House of Representatives has passed a version of it. But a Senate version has been stalled for months.

The Central Intelligence Agency admitted that the agency’s top officials destroyed hundreds of tapes depicting abusive interrogations of suspects. -db

The Reporters Committee for Freedom of the Press
April 16,2010
By Miranda Fleschert

Citing national security and state secrets, a Justice Department lawyer argued that the suit involving the CIA and a San Jose company over extraordinary rendition and torture of suspected terrorists cannot proceed in open court. -DB

San Francisco Chronicle
December 16, 2009
By Bob Egelko

SAN FRANCISCO — A lawsuit accusing a Bay Area flight-planning company of aiding an alleged CIA program of kidnapping and torturing terror suspects threatens national security and is too sensitive to discuss fully in a public courtroom, an Obama administration attorney argued Tuesday.

“The case cannot proceed without getting into state secrets,” Justice Department lawyer Douglas Letter told an 11-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco.

Several judges noted that most of the essential facts of the case have been widely aired – the existence of the “extraordinary rendition” program under President George W. Bush, the five plaintiffs’ accounts of their abduction and torture, and the alleged participation by Jeppesen Dataplan of San Jose – and asked why the case is too sensitive for the courts to hear.

Letter said he could reply only in a closed session. For the record, he said, “the U.S. government will not confirm or deny any relationship with Jeppesen.”

The court met privately with Letter after the one-hour public hearing, a practice that the plaintiffs’ lawyer, Ben Wizner of the American Civil Liberties Union, described as common in cases involving government claims of secrecy.

During the public session, Wizner accused the administration of trying to cover up wrongdoing.

“The CIA has engaged in kidnapping and torture and declared its crimes state secrets,” he said. Dismissing the suit without deciding whether the plaintiffs’ rights were violated, he said, would be “dangerous to democracy.”

Extraordinary rendition is the practice of abducting suspected terrorists and taking them to foreign countries or CIA prisons for interrogation.

The Bush administration used rendition extensively but said it always insisted on a guarantee from the foreign country that it would not torture the prisoner. President Obama has issued orders closing secret CIA prisons and barring torture, but has also endorsed Bush’s arguments for dismissal of the Jeppesen case and other suits by alleged victims of torture.

CIA’s air provider
Jeppesen, a Boeing Co. subsidiary, was described in a 2007 Council of Europe report as the CIA’s aviation services provider. In a court declaration in the current suit, a company employee quotes a director as telling staff members in 2006 that Jeppesen handled the CIA’s “torture flights.”

The five plaintiffs accuse Jeppesen of arranging their flights to foreign or CIA prisons, where they say they were interrogated brutally. Two of the men are still being held in Egypt and Morocco, and the others have been released without U.S. charges.

The Bush administration won a ruling by U.S. District Judge James Ware of San Jose dismissing the suit in February 2008. A three-judge appeals court panel reinstated the suit this past April, saying that neither the CIA nor its contractors were above the law. But the full court then granted the Obama administration’s request to refer the case to an 11-judge panel.

Mixed reaction
The government’s argument Tuesday – that allowing the case to proceed would risk disclosure of secrets about interrogation methods and CIA operations – drew a mixed reaction from the court.

Judge Michael Hawkins, author of the April decision, noted that the Obama administration plans to try the alleged mastermind of the Sept. 11 attacks in open court and has spoken publicly about interrogation abuses.

But Chief Judge Alex Kozinski said the administration, not the courts, must decide crucial questions of secrecy.

“I understand you think it’s not fair, but so what?” he told Wizner.

The plaintiffs could ask Congress to pass a special compensation bill for them without involving the courts, Kozinski said.

Congress already allows victims of torture, including foreigners, to sue for damages, the ACLU lawyer replied. “It’s not a waste of judicial resources to give torture victims their day in court,” he said.

The court gave no indication of when it would rule. The losing side could appeal to the Supreme Court.

Copyright 2009 Hearst Communications Inc.

Faced with the new open government directive, the Central Intelligence Agency is trying to decide to release online declassified documents and noncopyrighted analyses of foreign news. They fear that information online could be extracted more easily and combined to reveal classified information. -DB

The director of the Program on Government Secrecy says that key government departments are responding to the new open government directive but that two agencies stand out for blocking public access, the CIA and the Open Source Center. -DB