Court Requires Review of State Secrets Documents

Over the objections of government attorneys, a federal judge said yesterday that he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the “no fly” list.

The government had argued that it is “inappropriate” for a court to review such records to verify that they are validly privileged, and that instead the court should grant dismissal of case on the basis of official declarations. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27). The government moved for reconsideration of an August 6 order to produce the records for in camera review.

Yesterday, Judge Anthony J. Trenga of the Eastern District of Virginia granted the government’s motion for reconsideration, but he said that having reconsidered the matter, he determined that he had been right the first time around.

“Upon reconsideration of its Order, however, the Court finds that none of [the] objections justifies vacating the Order, as the defendants request. The Court therefore affirms its Order.”

“This case involves complex and unsettled issues pertaining to the respective roles of the legislative, executive and judicial branches,” Judge Trenga wrote. “One central issue is the extent to which the War on Terrorism may expand the ability of the executive branch to act in ways that cannot otherwise be justified.”

The Court “understands its limited institutional competence to assess claims of national security and its obligation not to extend its review of claims of state secrets beyond what is necessary for the Court to perform its institutional role,” Judge Trenga wrote. Nevertheless, under current circumstances “the Court concludes that it is necessary for the Court to review at this stage certain of the underlying documents as to which the state secrets privilege is asserted.”

“This case involves the extraordinary exercise of executive branch authority to operate a program [the "no fly" procedure] that results in the deprivation of basic liberties according to secret executive branch decision making, without pre-deprivation judicial review…. [Therefore,] the Court has a particularly strong and heightened institutional responsibility in these circumstances to review and assess the propriety of such executive branch activity since to dismiss this case as the defendants request would, in essence, judicially sanction conduct that has far-reaching implications.”

Merely relying on government assertions of privilege without independent review of their basis and validity is inadequate since “In many instances, the privilege claims are conclusory, and it is difficult, if not impossible, to assess the merits of those claims….”

“The Court therefore cannot accept, without further inquiry and review, that all of the documents as to which the state secrets privilege has been invoked in fact contain state secrets, or that any state secrets that might be contained in the listed documents would preclude the litigation of the plaintiff’s claims…,” Judge Trenga wrote.

He ordered the government to produce the relevant documents for in camera review on or before October 15, 2014.

In a footnote, Judge Trenga’s Order contains a rare judicial acknowledgment that “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”

 

Court Urged to Review State Secrets Documents

It is entirely proper for a court to conduct in camera review of documents and testimony that the government asserts are subject to the state secrets privilege, said the plaintiffs in a lawsuit challenging the constitutionality of the “no fly” list.

The Justice Department had argued that judicial review of privileged documents was “inappropriate” and asked Judge Anthony J. Trenga of the Eastern District of Virginia to reconsider his order requiring such review. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27.)

But “the state secrets privilege… was never intended to provide the federal government with a blank check to usurp the rights of Americans in novel and profound ways,” countered Gadeir Abbas, attorney for Gulet Mohamed, who is challenging the “no fly” procedure.

“This Court’s August 6th Order [requiring in camera review of the contested documents] is an appropriate exercise of its authority to subject the federal government’s limiting-principle-free assertion of the state secrets privilege to some scrutiny,” Mr. Abbas wrote in his September 5 response.

A ruling from the Court is pending.

Whether the government’s argument prevails or not, Mr. Abbas noted that the 2013 Watchlisting Guidance which the government sought to withhold has been published online by The Intercept.

Attorney General Holder “had asserted the state secrets privilege over this document, but because it is now publicly available, the Court can consider it in its entirety,” he wrote.

Gov’t Resists Court Review of State Secrets

It is “not appropriate” for a court to conduct its own independent review of evidence that the government asserts is protected by the state secrets privilege, attorneys for the government argued last week.

They were objecting to an order that was issued in a lawsuit challenging the constitutionality of the “no fly” list in the case of Gulet Mohamed v. Eric Holder. On August 6, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to submit for in camera review a copy of all documents and testimony relevant to the case that it asserts fall under the state secrets privilege.

Instead, government attorneys asked Judge Trenga in an August 22 motion to reconsider his order “on the ground that the required submission [of assertedly privileged material] is not appropriate or necessary for evaluation of whether the state secrets privilege should be upheld or whether dismissal is necessary, in light of the information already provided to the Court on those issues.”

“The Government has provided… a thorough description of the harm to national security that would result from the disclosure of the privileged information. The additional submissions ordered by the Court would not assist in that determination,” they added.

But the kind of in camera review that the government attorneys objected to is actually among the “best practices” that should be adopted in all state secrets cases, according to a 2008 Senate Judiciary Committee report on the State Secrets Protection Act, a bill that was intended to regulate the use of the privilege.

The Act, introduced by the late Sen. Edward Kennedy, the late Sen. Arlen Specter, and Sen. Patrick Leahy, would have “instruct[ed] courts to avoid excessively deferential standards of review and to retain full control over privilege determinations.”

Among other requirements, the Act required that “The Government must make all evidence it claims is subject to the privilege available for the court to review…. If the Government refuses to turn over evidence or to provide a non-privileged substitute ordered by the court, the court will resolve the relevant issue of fact or law against the Government.”

The Act’s provision for in camera judicial review of privileged materials “makes crystal-clear that the court, not the executive branch, determines which items of evidence are privileged,” the Senate report said. “It requires the court to consider the actual evidence, rather than rely on Government affidavits or representations about the evidence, in making this determination.”

This is one of the steps needed to resolve “the crisis of legitimacy currently surrounding the [state secrets] privilege,” the Senate report said.

However, several Republican Senators on the Judiciary Committee disputed the need for the State Secrets Protection Act. They said in dissenting views appended to the report that the right balance had already been struck. The Act was never enacted into law and no other guidance on the use of the privilege has emerged from Congress.

Therefore, it will be up to Judge Trenga and his judicial colleagues to determine the proper scope and application of the state secrets privilege in each individual case.

Attorneys for the Plaintiff Gulet Mohamed said that they would oppose the government’s motion for reconsideration.

 

Espionage Act Case Was “Overcharged,” Defense Says

In 2012, former Navy linguist James F. Hitselberger was indicted on two felony counts under the Espionage Act statutes after several classified documents were found in his possession. In 2013, a superseding indictment charged him with another four felony counts.

But in the end, Mr. Hitselberger pleaded guilty this year to a single misdemeanor charge of removing classified documents without authorization.

Now both the defense and the prosecution are endorsing Hitselberger’s request that any jail penalty be limited to the time he has already served, including two months in DC jail and eight months of home confinement. The sentencing hearing is scheduled for July 17.

Despite the stark disparity between the multiple felony counts with which Hitselberger was charged, and the single misdemeanor of which he was convicted, the prosecution said that it had no second thoughts about the way the matter was handled.

“It is important to note that the government’s case against Mr. Hitselberger did not collapse,” prosecutors said in a June 27 sentencing memorandum. To the contrary, prosecutors wrote, “in several ways, the government’s case became stronger than what it had been when the charges were first obtained.”

Defense attorneys disputed that assertion and said the government had overreached.

“At a minimum, the evidence demonstrates that the government significantly overcharged the case, and the guilty plea to a misdemeanor not only was the appropriate result, but also demonstrates how the offense should have been charged from the beginning,” the defense wrote in a June 27 reply.

The mountain of Espionage Act charges that yielded a molehill of a misdemeanor in this case recalls a similar progression in the prosecution of former NSA official Thomas Drake, where ten felony counts gave way to a technical misdemeanor. This recurring pattern may indicate that overcharging is a standard prosecutorial approach to such cases, or that the judicial process is effectively winnowing out excessive felony charges, or perhaps both.

A June 26 sentencing memorandum submitted by the defense presented its own account of the facts of the case, along with several moving testimonials from Hitselberger’s friends and relatives as to his character.

In another pending Espionage Act case, the Obama Administration must decide if it will pursue a subpoena against New York Times reporter James Risen. For a current update, see Reporter’s Case Poses Dilemma for Justice Dept. by Jonathan Mahler, New York Times, June 27.

Selection of FISA Court Judges, and More from CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Unauthorized Aliens in the United States: Policy Discussion, May 8, 2014

Apprehensions of Unauthorized Migrants along the Southwest Border: Fact Sheet, May 2, 2014

FEMA’s Disaster Relief Fund: Overview and Selected Issues, May 7, 2014

Central America Regional Security Initiative: Background and Policy Issues for Congress, May 6, 2014

Libya: Transition and U.S. Policy, May 8, 2014

Ukraine: Current Issues and U.S. Policy, May 8, 2014

U.S. Special Operations Forces (SOF): Background and Issues for Congress, May 8, 2014

Jordan: Background and U.S. Relations, May 8, 2014

Armed Conflict in Syria: Overview and U.S. Response, May 5, 2014

Federal Holidays: Evolution and Current Practices, May 9, 2014

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, May 8, 2014

 

Selective Prosecution and the Espionage Act

Government officials disclose classified information to the press with some frequency, but only rarely are they prosecuted for it.

Such selective prosecution renders the law unfair, said attorney Abbe Lowell at the April 2 sentencing hearing of his client, Stephen Kim, who pled guilty to an unauthorized disclosure of classified information.

Mr. Kim, a former State Department Korea specialist who could have been sentenced to 10 years in prison and a fine of $250,000, received a 13 month jail sentence. The transcript of the April 2 sentencing hearing is now available here.

The fact that senior officials go unpunished for comparable or greater offenses “doesn’t mean that Mr. Kim didn’t violate the law,” said Mr. Lowell. But “it means that our system is out of balance.”

The “antiquated” Espionage Act that is used to prosecute leaks is “one very blunt tool,” Mr. Lowell said.

Still, “There’s some good that can come from this case,” Mr. Lowell suggested. He noted that it had already led the Department of Justice to revise its policy and practice on investigating or charging members of the news media.

In other leak-related news, the Obama Administration argued that there is no privilege that would excuse New York Times reporter James Risen from testifying in court as to the identity of the source who provided him with classified information. In an April 25 brief, the Administration asked the U.S. Supreme Court to reject Mr. Risen’s petition to review the matter.

Meanwhile, former Navy linguist James Hitselberger, who had been charged under the Espionage Act with unlawful retention of national defense information (18 USC 793e), pleaded guilty on April 25 to a lesser offense of unauthorized retention of classified information (18 USC 1924), which carries a sentence of up to one year in prison. He is to be sentenced on July 17. (More from Josh Gerstein in Politico.)

 

Stephen Kim Pleads Guilty to Leak Charge

Former State Department contractor Stephen Kim pleaded guilty on Friday to one count of unauthorized disclosure of national defense information to a Fox News reporter. Following a sentencing hearing in April, he is expected to serve a 13 month term in prison. (WashPost, NYT, Politico).

The plea was an abrupt departure from previous defense strategy. As recently as last month, Mr. Kim’s attorneys had argued that it was “the defense’s theory that the alleged disclosure to Fox News emanated from senior officials at the National Security Council or the White House, and not from a lower level employee like Mr. Kim” (Defendant’s Seventh Motion to Compel, January 17, 2014, page 5).

But in a February 3 Statement of Offense signed by the defendant, Mr. Kim acknowledged that he had “orally disclosed to Reporter A [James Rosen of Fox News] TS//SCI national defense information… specifically about the military capabilities and preparedness of North Korea.”

The two positions are not necessarily contradictory. “Stephen did not reveal any intelligence ‘sources’ or ‘methods’,” said his defense attorney Abbe Lowell in a February 7 statement. “He did not provide any documents or electronic data to anyone. He did not pay for or receive payment for his actions.”

Moreover, Mr. Lowell said, “news reports from the same day demonstrate that Stephen was not the only government employee discussing the topic at issue. Stephen may have told the reporter what the reporter already knew from others, but Stephen was the only one charged.”

The case against Mr. Kim stemmed from a June 11, 2009 Fox News story (“North Korea Intends to Match U.N. Resolution With New Nuclear Test” by James Rosen).

That story stated that “Pyongyang’s next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take….” The brief but startling reference to “sources inside North Korea” appeared to refer to CIA human intelligence sources within the DPRK, potentially placing any such sources at heightened risk.

If that short phrase had not been published, it is doubtful that the Fox News story would have triggered a full-fledged leak investigation, or that Mr. Kim would have been prosecuted as a result.

In other words, because Fox News reported and edited the story in such a questionable way, it deserves a share of the responsibility both for any compromise of U.S. intelligence capabilities that may have occurred, and for Mr. Kim’s unhappy fate. (As noted above, Mr. Kim’s defense denies that he revealed any intelligence sources and methods.)

Unfortunately, this kind of carelessness on the part of media organizations is not all that unusual, even among publications that are not avowedly antagonistic or “adversarial” towards U.S. intelligence.

“News organizations publishing leaked National Security Agency documents have inadvertently disclosed the names of at least six intelligence workers and other government secrets they never intended to give away,” according to the Associated Press (“Media sometimes try, fail to keep NSA’s secrets” by Raphael Satter, AP, February 8).

The 13 month prison sentence that Stephen Kim is expected to receive may be the least of the punishments he will have suffered. Merely to be accused and prosecuted under the Espionage Act can be practically unbearable.

Even before a final judgment has been rendered, his sister wrote, “He endured what would break a normal person, abandoned by his significant other, deserted by his ‘friends’, shunned by his former colleagues, [and] ostracized by society.”

But setting aside questions of fairness, proportionality and selective prosecution, there is a certain dignity in submitting to the judicial process and accepting the consequences of one’s actions.

“Stephen decided to take responsibility for his actions and move forward with his life,” wrote Abbe Lowell.

As we know, not everyone is prepared to do that. But it is not a new predicament.

In ancient Athens, friends of Socrates urged him to flee the country to escape an unjust punishment.

“For men will love you in other places to which you may go, and not in Athens only,” said Crito in Plato’s dialogue of that name. “There are friends of mine in Thessaly, if you like to go to them, who will value and protect you, and no Thessalian will give you any trouble.”

“Nor can I think that you are justified, Socrates, in betraying your own life when you might be saved; this is playing into the hands of your enemies and destroyers,” Crito added.

Upon consideration, however, Socrates refused to become a fugitive under those circumstances. He said he had “chosen the better and nobler part, instead of playing truant and running away, of enduring any punishment which the state inflicts” (Phaedo).

“The Athenians have thought fit to condemn me, and accordingly I have thought it better and more right to remain here and undergo my sentence,” Socrates said.

FISA Court Appointments, Potential Reforms, and More from CRS

It was announced today that Chief Justice Roberts has appointed Judge James E. Boasberg of the DC District Court to the Foreign Intelligence Surveillance Court for a seven year term beginning in May 2014. He will replace the outgoing Presiding Judge Reggie Walton, whose term expires in May. The Chief Justice also appointed Judge Richard C. Tallman of the Ninth Circuit Court of Appeals to the Foreign Intelligence Surveillance Court of Review.

The current membership of the FISA Courts can be found here.

Background information on the Foreign Intelligence Surveillance Court and potential changes to its operations were discussed in a new report from the Congressional Research Service. See Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, January 16, 2014.

Relatedly from CRS, see Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues, October 25, 2013

Other new and updated CRS reports that Congress has withheld from online public distribution include the following.

The 2014 Sochi Winter Olympics: Security and Human Rights Issues, January 26, 2014

The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, January 27, 2014

Cuba: U.S. Policy and Issues for the 113th Congress, January 29, 2014

Cuba: U.S. Restrictions on Travel and Remittances, February 4, 2014

Mexico: Background and U.S. Relations, January 30, 2014

Status of Mexican Trucks in the United States: Frequently Asked Questions, January 3, 2014

The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, January 23, 2014

Judge Wants to Examine Censored Book

For more than three years, author Anthony Shaffer has been challenging the government’s contention that hundreds of passages in his Afghanistan memoir “Operation Dark Heart” are classified and should not be publicly disclosed. Now a judge has ordered the full text of the book to be delivered to her in “complete and unredacted” form.

DC District Judge Rosemary M. Collyer told the Defense Intelligence Agency and its co-defendants DOD and CIA to file under seal “a complete and unredacted copy of the published book, Operation Dark Heart: Spycraft and Special Ops on the Frontline of Afghanistan and the Path to Victory” no later than January 24.

“The 233 passages that remain classified should be unredacted and highlighted in yellow,” she wrote in a January 17 order. “The passages that were initially redacted but subsequently declassified should be highlighted in blue. If the unredacted copy of the book contains both secret and top secret information, Defendant must file a secret and top secret version of the book. That is, one copy should contain all classified information unredacted and highlighted in yellow. The other copy should contain only the secret information unredacted and highlighted and the top secret information redacted.”

The clear implication is that Judge Collyer intends to perform her own assessment of the validity of the government’s classification claims rather than simply rely on the affidavits of government officials attesting to their validity.

Though sensible and straightforward, this is also an unusual step. Most often, courts defer to the presumed expertise of executive branch classification officials, and decline to “second guess” them. This case is now shaping up to be an exception to that rule.

The dispute over “Operation Dark Heart” is complicated by the fact that review copies of the original, uncensored text have circulated in the public domain and portions of the text have been posted online.