Disclosing classified information without authorization is a crime even if the leaker had good intentions and was motivated by a larger public interest, the government said this week. Therefore, any mention of the purpose of the disclosure should be ruled out of bounds in trial, government attorneys argued.

The issue arose in pre-trial motions in the case of USA v. Daniel Everette Hale. Hale is a former NSA intelligence analyst and NGA contractor who is accused of having provided classified documents concerning US military drone programs to The Intercept.

“The defense likely will want to argue that, even if the defendant engaged in the conduct alleged, he had good reasons to leak the documents at issue and is being unfairly prosecuted under criminal statutes that carry significant penalties. Any such arguments, however, would be entirely improper,” the government said in a motion to exclude such material.

“Evidence of the defendant’s views of military and intelligence procedures would needlessly distract the jury from the question of whether he had illegally retained and transmitted classified documents, and instead convert the trial into an inquest of U.S. military and intelligence procedures.”

“The defendant may wish for his criminal trial to become a forum on something other than his guilt, but those debates cannot and do not inform the core questions in this case: whether the defendant illegally retained and transferred the documents he stole,” the September 16 government motion said.

The government said the defense should also be barred from arguing that a different perpetrator committed the charged crimes, from claiming that “everybody leaks classified information,” and from informing the jury that if convicted the defendant could go to prison.

“Any punishment or consequence the defendant might suffer is irrelevant to the factual issues and, therefore, inadmissible,” the government motion said.

Exclusion of a “good motive” or public interest argument is consistent with past practice in previous leak trials under the Espionage Act dating back to the case of Daniel Ellsberg and the Pentagon Papers, as writer Tom Mueller recalled in his new cultural history of whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud (p. 111).

In Ellsberg’s 1973 trial, “Prosecutors had also insisted, and [Judge William] Byrne had agreed, that the jury be instructed not to consider the larger questions raised by the defendant’s acts: the morality of the Vietnam War, the public’s right to know, the freedom of the press, or the Supreme Court’s recent First Amendment decision in favor of the [New York] Times,” Mueller wrote.

“Ellsberg still remembers his shock when the prosecution prevented him from explaining his motives for releasing the papers. When his lawyer asked him straightforwardly why he’d done it, a prosecutor objected that the question was ‘immaterial,’ and Judge Byrne sustained. ‘My lawyer was stunned,’ Ellsberg remembers. ‘He told Judge Byrne that he’d never heard of a case where a defendant wasn’t allowed to tell the jury why he’d done what he did. “Well, you’re hearing one now,” Byrne said’.”

“This restrictive interpretation of the Espionage Act presaged subsequent . . . prosecutions after 9/11, which forbade Chelsea Manning, Tom Drake and other national security whistleblowers from explaining why they blew the whistle,” Mueller wrote.

Defense challenges to secrecy policy and classification decisions should also be prohibited, the government argued in a separate motion in the Hale case.

“It is not proper for the Court or the defense to challenge a government agency’s classification determination. Such determinations are exclusively a function of the Executive Branch. It follows, therefore, that the defense cannot challenge the classification of the documents at issue in this case or make general allegations of misclassification of information within the U.S. government at large,” the government said.

*    *    *

For its part, the defense argued this week that the case against Hale should be dismissed because the Espionage Act as applied here infringes impermissibly on First Amendment freedoms.

“Now that the Act is used regularly against those who leak for no purpose other than informing their fellow citizens about their own government, its chilling effect is fatal to its continued viability. Moreover, its broad terms allow viewpoint-based prosecutions of the press and those whose actions are necessary for the press to freely operate.”

“Accordingly, the provisions charged here should be voided as facially overbroad, . . . and the Indictment should be dismissed,” the defense motion said (WaPo, AP).

The parties will respond to each other’s motions in weeks to come.

The number of district court vacancies during the Obama presidency grew from 41 vacancies in January 2009 to 75 vacancies in September 2016 — an unusual 83% increase, according to a new assessment from the Congressional Research Service.

By contrast, the number of vacancies decreased over the course of the George W. Bush Administration from 58 to 32 (a 45% decrease) and over the course of the Clinton Administration from 93 to 42 (a 55% decrease).

See U.S. District Court Vacancies: Overview and Comparative Analysis, CRS Insight, September 14, 2016

Other new and updated reports from the Congressional Research Service include the following.

U.S. Circuit Court Vacancies: Overview and Comparative Analysis, CRS Insight, September 14, 2016

How a National Infrastructure Bank Might Work, CRS Insight, September 15, 2016

International Food Aid Programs: Background and Issues, updated September 14, 2016

FDA Regulation of Medical Devices, updated September 14, 2016

Prospects in Colombia: Cease-Fire, Peace Accord Vote, and Potential Disrupters, CRS Insight, September 14, 2016

Nicaragua: In Brief, September 14, 2016

Navy Ship Names: Background for Congress, updated September 14, 2016

The Miranda warning advising detained persons that they have the right to remain silent has counterparts in the legal systems of 108 countries or jurisdictions around the world. These were collected and described in a new staff study performed for the Law Library of Congress.

“The warnings specified in the surveyed jurisdictions vary, but typically include the right to remain silent and the right to legal counsel. A number of countries also specify that a person who is arrested or detained has the right to be informed of the reasons for the arrest or detention or of the charges being brought,” the study said.

See Miranda Warning Equivalents Abroad, Staff of the Law Library of Congress Global Legal Research Center, May 2016.

In Kiribati, “the police officer may ask the suspect to explain the meaning of the caution in his or her own words” to ensure that the suspect understands the matter correctly, the report said.

In a pending lawsuit challenging the constitutionality of the “no fly” list, in which the government has asserted the state secrets privilege, a federal court signaled that it would consider requiring judicial approval of “no fly” determinations involving U.S. citizens.

Judge Anthony J. Trenga, who presides over the case Gulet Mohamed v. Eric Holder in the Eastern District of Virginia, set a hearing on February 24 to allow the government to supplement its argument that the case must be dismissed on state secrets grounds. Judge Trenga has previously rejected government arguments that state secrets required dismissal of the case and concluded the case could proceed without the assertedly privileged documents. (Secrecy News, 10/31/14).

In a February 2 order, he told the government to be prepared to explain “how the under seal documents as to which the state secrets privilege is claimed preclude adjudication of the procedural due process claims without their use and disclosure.”

Beyond that, however, Judge Trenga hinted at a possible remedy to the constitutional challenge before the court involving independent judicial review of “no fly” determinations.

He asked the government to address “whether, and if so how, national security considerations make it impractical or otherwise undesirable to submit for ex parte, in camera judicial review and approval the placement of United States citizens on the No Fly List, either before a citizen’s placement on the No Fly List or within a specific time period after placement on the No Fly List.”

The upcoming hearing will be closed and ex parte.

The scope of the state secrets privilege is again a matter of contention, as government attorneys in an ongoing lawsuit told a judge last week that he had construed the privilege too narrowly.

Is the state secrets privilege applicable only to discrete items of evidence whose disclosure can be shown to harm the Nation? Or can the privilege be invoked more broadly based on the “context” in which litigation occurs? The proper parameters of the state secrets privilege have never been defined in statute, and so these questions recur.

In a pending lawsuit concerning the constitutionality of the “no fly” list (Gulet Mohamed v. Eric Holder), the presiding judge has taken a distinctly skeptical view of the government’s use of the state secrets privilege.

Judge Anthony J. Trenga of the Eastern District of Virginia last fall denied a government motion to dismiss the case on state secrets grounds (Secrecy News,10/31/14), and he concluded that the government’s claim of privilege to withhold 28 specified documents was inadequately justified.

But last week, the government renewed its claim that Judge Trenga was “in error,” and that his ruling “may have been based on an improperly narrow construction of the scope of the privilege.”

Specific pieces of documentary evidence are not the only things that can be subject to the state secrets privilege, the government insisted.

“The Attorney General’s assertion of the state secrets privilege in this case is not limited to certain physical documents that Plaintiff seeks to compel through discovery, but rather covers evidence and information that would be needed to litigate the claims presented in this lawsuit in whatever form it appears,” the government argued.

Nor is the privilege simply limited to “information” rather than “documents,” in the government’s view.

“An assessment of the privilege assertion encompasses not just the information set forth in the four corners of a particular document, but also the broader context of the privileged information which that document reflects,” the government asserted in itsJanuary 23 pleading.

By contrast, the government said, Judge Trenga’s order to the contrary “appears to circumscribe the scope of [the government’s] assertion of the state secrets privilege… by focusing on the specific documents” sought by the Plaintiffs in discovery, and then finding those documents insufficiently sensitive to be privileged on state secrets grounds.

“The privilege also protects information that may appear innocuous on its face, but which in a larger context could reveal sensitive classified information,” the governmentargued.

In other words, the government seems to say here, the state secrets privilege has no limiting principle by which it can be circumscribed and objectively constrained.

The State Secrets Protection Act, a bill repeatedly introduced in Congress but never enacted into law, would have made clear that “the state secrets privilege is an evidentiary rule, not a justiciability rule, and can only be asserted with respect to items of evidence that plaintiffs seek in discovery or intend to disclose in litigation.”

It would also have set “a standard of review designed to give appropriate respect to the executive branch’s institutional expertise and constitutional role, without undermining the judge’s duty to make an independent determination on each privilege claim.”

Essentially, according to a 2008 Senate report, “the bill rejects the  expansion of the state secrets privilege into any manner of justiciability doctrine, and demands that it be applied as a purely evidentiary privilege.”

But in the absence of legislative action, the asserted scope of the privilege continues to drift.

*          *          *

Under the terms of a 2009 policy, the Department of Justice committed to provide periodic reports to Congress with respect to all cases in which the state secrets privilege was invoked.

But it has failed to do so, observed Sen. Dianne Feinstein yesterday at the confirmation hearing of Loretta Lynch, the Attorney General-nominee. Only one such report has been transmitted, in 2011, and it does not cover all current state secrets proceedings.

“I believe that the Department plans to submit another report in the near future,” said John Carlin, the head of the Justice Department National Security Division, in a written response to questions prior to his confirmation hearing. But that was in February 2014, and no subsequent report to Congress has been produced.

Nor have any of the 2009 policy’s other provisions been implemented in a way that could be externally verified. No narrowly tailored uses of the privilege have been asserted, as far as anyone knows, and no disputed matters considered subject to the privilege have been forwarded to the Inspector General for review.

In an unusual gesture, the U.S. Government last week apologized to Abdullah al-Kidd, a U.S. citizen who was arrested in 2003 and detained as a material witness in connection with a terrorism-related case.

Mr. Al-Kidd, represented by American Civil Liberties Union attorney Lee Gelernt, challenged his detention as unconstitutional and inhumane. Now the case has been settled, with an official apology and a payment of $385,000.

“The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention,” wrote U.S. Attorney Wendy J. Olson in a January 15 letter.

This sort of admission of regret is rare. The government apologizes much less frequently than it perpetrates injuries that are inappropriate or unwarranted. So, for example, the recent Senate report on post-9/11 CIA interrogation practices noted that at least 26 individuals had been “wrongfully detained.” But legal attempts to recover damages are typically foreclosed by courts based on “separation of powers, national security, and the risk of interfering with military decisions.”

Why not apologize and compensate those who have been abused and mistreated, starting with those individuals who by all accounts are innocent of any wrongdoing? It would be the just and honorable thing to do, both for the intelligence community and for the country. And it would be most powerful (and most “therapeutic”) if the IC undertook this step at its own initiative, rather than waiting to be compelled by others.

“Personally I agree,” a senior U.S. intelligence community legal official said privately, “for the reasons you say and some others. [But] getting it done is a lot harder.”

And so it is. Even as it apologized to Abdullah al-Kidd, the U.S. Government insisted on a stipulation that the settlement of the case “is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States.”

The “no fly” list procedures that are used to prevent individuals who may present a security hazard from flying on commercial aircraft are being revised to make them more transparent and easier to challenge, government attorneys said Friday. They asked a court to suspend a lawsuit disputing the constitutionality of the “no fly” procedures for two months until the revisions are complete.

“The Government… is currently reviewing and revising the administrative redress procedures for denials of boarding,” Justice Department attorneys said in a November 14 memorandum in support of a motion for a stay of proceedings in the lawsuit Gulet Mohamed v. Eric Holder.

“The Government is revising current redress procedures to increase transparency of the process for certain persons denied boarding on commercial aircraft,” the memorandum said.

The government had previously sought dismissal of the entire Gulet Mohamed case on state secrets grounds. That move was rejected by the court. (Secrecy News, October 31.)

The revised “no fly” procedures are expected to be completed and available by January 16, 2015.

Revisions to the “no fly” procedures were initiated in response to another pending lawsuit, Ayman Latif v. Holder, in which the court directed the government to “fashion new procedures that provide Plaintiffs with the requisite due process….”

In response, attorneys in the Latif case said, “the Government will endeavor to increase transparency for certain individuals denied boarding who believe they are on the No Fly List and have submitted DHS TRIP [Traveler Redress Inquiry Program] inquiries, consistent with the protection of national security and national security information, as well as transportation security.” (Their remarks were presented in a status report appended to the new motion for a stay).

With respect to the Gulet Mohamed case, the government said that “Plaintiff’s procedural due process claim will be directly impacted–and potentially mooted–by the Government’s revision of its redress procedures, the exact procedures that Plaintiff alleges to be constitutionally inadequate.”

“For an individual who is on the No Fly List, the development of new procedures may affect the universe of information relied upon in support of the placement decision, or even the placement decision itself. In this way, the revised procedures could affect the nature of the legal claims to be resolved. Moreover, once the revised procedures are in place, Plaintiff’s claims may be moot or, at the least, in need of reformulation should he decide to continue litigating the case.”

“In these circumstances, a stay is appropriate because the revised redress procedures may affect the Government’s need to rely on information subject to the assertion of the state secrets privilege or the need to move again for dismissal,” the November 14 memorandum said.

Attorneys for plaintiff Gulet Mohamed oppose the government motion for a stay, which will be considered by the court at a November 24 hearing. [Update 11/19/14: The court said it would consider the matter without a hearing.]

Related issues were discussed by the Congressional Research Service in “The No Fly List: Procedural Due Process and Hurdles to Litigation,” September 18, 2014.

As of December 2013, there were 47,000 people on the no-fly list, including 800 Americans, the Washington Post reported (“More than 1 million people are listed in U.S. terrorism database” by Adam Goldman, August 5, 2014).

When the government intervened in a private lawsuit to assert the state secrets privilege and to seek dismissal of the entire proceeding (Secrecy News, September 15), it acted improperly and misused the state secrets privilege, the attorney for the plaintiff in the case told the Court yesterday.

“The Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment,” wrote Abbe D. Lowell, the plaintiff’s attorney in Restis v. United Against Nuclear Iran.

Specifically, by refusing to identify the subject or scope of the privileged information, or even the agency that was asserting the privilege, the government has “violate[d] any semblance of due process” and “prevent[ed] the opposing party from understanding the claim in any fashion,” he wrote.

The Government says that “the identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters,” according to a memorandum filed September 12.

But Mr. Lowell asked the Court to order the Government to file a public declaration in support of its privilege claim so that the Plaintiff could offer a substantive rebuttal.

“In the typical state secrets case, the Government will simultaneously file both a sealed ex parte declaration and a detailed public declaration,” Mr. Lowell noted. “The Government has not offered any explanation as to why it cannot do so here. [In other state secrets cases,] there always is some way for the Government to identify the nature of its privilege claim without disclosing the privileged information itself.”

“Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government’s claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case.”

“In every other case of which we are aware, the Government made sufficient public disclosure of the nature of the state secrets and its reasons for seeking dismissal to allow those claims to be tested, and all Plaintiffs ask is that the Government do so here, so that Plaintiffs can then respond adequately to the actual motions filed,” Mr. Lowell wrote.

“The Plaintiffs plan to advance their claims without using any state secrets,” he noted, “and it is not clear how state secrets could be relevant to the defense.”

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….”

 

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.

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.

 

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.