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Udall said he had lifted a procedural obstacle he had placed on the CIA’s nominee for its next general counsel, Caroline Krass. That sets up the departure of its acting senior attorney, Robert Eatinger, who is at the centre of this week’s extraordinary battle between the Senate intelligence committee and the CIA.Krass had already cleared the Senate committee, but Udall put her on hold to gain leverage for the committee in its struggle for access to CIA documents relevant to its extensive study of the agency’s post-9/11 interrogation, rendition and detention program, which involved torture.The Senate voted Thursday to confirm Krass, sending her to Langley at a time when relations between the CIA and the Senate have reached a nadir. While Eatinger was never going to be the agency’s permanent general counsel, he is now the first explicit casualty in the row between the CIA and its Senate overseers.Eatinger, a longtime agency lawyer with counterterrorism experience, was cited on Monday by the panel’s chairwoman, Dianne Feinstein of California, in her seminal speech lashing out at the CIA. Without naming him, Feinstein indicated he was instrumental in the agency’s now-abandoned torture practices, and had been cited over 1,600 times in the classified Senate torture investigation.

Feinstein said Eatinger, whom senators have taken care not to name, had alerted the Justice Department to her staff’s removal of a CIA document from a classified facility – which both Feinstein and Udall cite as a conflict of interest.Ahead of Krass’s arrival at the CIA, Udall called on Eatinger to immediately recuse himself from any internal matters related to either the torture inquiry or the Senate panel generally. “We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate intelligence committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said in a statement on Thursday.

Significantly, Judge Huvelle insisted on examining the document herself in camera instead of simply relying on the Administration’s characterization of the document.  Having done so, she found that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.” She criticized the government for “the unbounded nature” of its claim. “In the government’s view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President…. The Court rejects the government’s limitless approach….”

An official Fact Sheet on PPD-6 (which has not yet been released) is available here. The Electronic Privacy Information Center is currently pursuing release of another presidential directive, the Bush Administration’s NSPD-54 on cyber security. In October, Judge Beryl Howell unexpectedly ruled that that directive was exempt from disclosure because, she said, it was not an “agency record” that would be subject to the FOIA.  Her opinion came as a surprise and was not persuasive to everyone. In a footnote in yesterday’s ruling, Judge Huvelle said that the arguments over the two directives were sufficiently distinguishable that “this Court need not decide if it will follow Judge Howell’s rationale”– suggesting that if pressed, she might not have done so.  Yesterday, EPIC filed a notice of its intent to appeal the decision.

DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.” The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong. “The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight– to engage in what is in effect governance by ‘secret law’,” Judge Huvelle wrote in her December 17 opinion. “The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.

The Archive appealed the lower court's decision, and with representation from the distinguished firm of Skadden Arps Meagher Slate & Flom, brought the case to the D.C. Circuit, with oral argument in December 2013. The National Coalition for History, including the American Historical Association and other historical and archival professional organizations, joined the case with an amicus curiae brief authored by the Jones Day law firm arguing for release of the volume. Titled "CIA's Internal Investigation of the Bay of Pigs Operation," Volume V apparently contains Pfeiffer's aggressive defense of the CIA against a hard-hitting 1961 internal review, written by the agency's own Inspector General, which held the CIA singularly responsible for the poor assumptions, faulty planning and incompetence that led to the quick defeat of the paramilitary exile brigade by Fidel Castro's military at the Bahia de Cochinos between April 17 and April 20, 1961. The Archive obtained under FOIA and published the IG Report in 1998. The CIA has admitted in court papers that the Pfeiffer study contains "a polemic of recriminations against CIA officers who later criticized the operation," as well as against other Kennedy administration officials who Pfeiffer contended were responsible for this foreign policy disaster. In the dissenting opinion from the D.C. Circuit's 2-1 decision yesterday, Judge Judith Rogers (appointed by Bill Clinton) identified multiple contradictions in the CIA's legal arguments. Judge Rogers pointed out that the CIA had failed to justify why release of Volume V would "lead to public confusion" when CIA had already released Volumes I-IV. She noted that neither the CIA nor the majority court opinion had explained "why release of the draft of Volume V 'would expose an agency's decision making process,'" and discourage future internal deliberations within the CIA's historical office any more than release of the previous four volumes had done.

Prior to yesterday's decision, the Obama administration had bragged that reducing the government's invocation of the b-5 exemption was proof of the impact of the President's Day One commitment to a "presumption of disclosure." Instead, the bureaucracy has actually increased in the last two years its use of the b-5 exemption, which current White House counselor John Podesta once characterized as the "withhold if you want to" exemption. The majority opinion also left two openings for transparency advocates. It invites Congress to set a time limit for applying the b-5 exemption, as Congress has done in the Presidential Records Act. Second, it concludes that any "factual material" contained in the draft should be reachable through Freedom of Information requests.

“We actually do have a lot to brag about,” White House spokesman Josh Earnest said. The government’s responsiveness under the open records law is an important measure of its transparency. Under the law, citizens and foreigners can compel the government to turn over copies of federal records for zero or little cost. Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. It cited such exceptions a record 554,969 times last year. Under the president’s instructions, the US should not withhold or censor government files merely because they might be embarrassing, but federal employees last year regularly misapplied the law. In emails that AP obtained from the National Archives and Records Administration about who pays for Michelle Obama’s expensive dresses, the agency blacked-out a sentence under part of the law intended to shield personal, private information, such as Social Security numbers, phone numbers or home addresses. But it failed to censor the same passage on a subsequent page.

The sentence: “We live in constant fear of upsetting the WH [White House].” In nearly one in three cases, when someone challenged under appeal the administration’s initial decision to censor or withhold files, the government reconsidered and acknowledged it was at least partly wrong. That was the highest reversal rate in at least five years. The AP’s chief executive, Gary Pruitt, said the news organization filed hundreds of requests for government files. Records the AP obtained revealed police efforts to restrict airspace to keep away news helicopters during violent street protests in Ferguson, Missouri. In another case, the records showed Veterans Affairs doctors concluding that a gunman who later killed 12 people had no mental health issues despite serious problems and encounters with police during the same period. They also showed the FBI pressuring local police agencies to keep details secret about a telephone surveillance device called Stingray.

“What we discovered reaffirmed what we have seen all too frequently in recent years,” Pruitt wrote in a column published this week. “The systems created to give citizens information about their government are badly broken and getting worse all the time.” The US released its new figures during Sunshine Week, when news organizations promote open government and freedom of information. The AP earlier this month sued the State Department under the law to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The government had failed to turn over the files under repeated requests, including one made five years ago and others pending since the summer of 2013.

The government said the average time it took to answer each records request ranged from one day to more than 2.5 years. More than half of federal agencies took longer to answer requests last year than the previous year. Journalists and others who need information quickly to report breaking news fared worse than ever. Under the law, the US is required to move urgent requests from journalists to the front of the line for a speedy answer if records will inform the public concerning an actual or alleged government activity. But the government now routinely denies such requests: Over six years, the number of requests granted speedy processing status fell from nearly half to fewer than one in eight. The CIA, at the center of so many headlines, has denied every such request over the last two years.

The White House’s fight to keep the short phrase describing Bush’s authorization of the torture program hidden speaks to its apparent ambivalence over the torture program. Even after President Obama released the DOJ memos authorizing torture – along with a damning CIA Inspector General Report and a wide range of documents revealing bureaucratic discussions within the CIA about torture – the White House still fought the release of the phrase that would have made it clear that the CIA conducted this torture at the order of the president. And it did so with a classified declaration from Jones that would have remained secret had Judge Hellerstein not insisted it be made public. As Aftergood noted, such White House intervention in a FOIA suit is rare. “The number of times that a national security advisor has filed a declaration in a FOIA lawsuit is vanishingly small,” he said. “It almost never happens.” But as ACLU Deputy Legal Director Jameel Jaffer noted of the finding, “It was the original authority for the CIA’s secret prisons and for the agency’s rendition and torture program, and apparently it was the authority for the targeted killing program as well.  It was the urtext.  It’s remarkable that after all this time it’s still secret.”

Enduring confusion about this particular finding surely exists because of its flexible nature. As Bob Woodward described in Bush at War, CIA Director Tenet asked President Bush to sign “a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation.” As Jane Mayer described in The Dark Side, such an order not only gave the CIA flexibility, it also protected the President. “To give the President deniability, and to keep him from getting his hands dirty, the finding called for the President to delegate blanket authority to Tenet to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain and interrogate, and how.” When George Tenet signed written guidelines for the CIA’s torture program in 2003, however, he appeared to have deliberately deprived the President of that deniability by including the source of CIA’s authorization – presumably naming the President – in a document interrogators would see. You can’t blame the CIA Director, after all; Tenet signed the Guidelines just as CIA’s Inspector General and DOJ started to review the legality of the torture tactics used against detainees like Abd al-Rahim al-Nashiri, who was threatened with a drill and a gun in violation of DOJ’s ban on mock executions.

President Obama’s willingness to go to such lengths to hide this short phrase may explain the White House’s curious treatment of potentially privileged documents with the Senate now – describing President Bush’s authorization of the torture program and its seemingly contradictory stance supporting publishing the Torture Report while thwarting its completion by withholding privileged documents. After all, the documents in question, like the reference to the presidential finding, may deprive the President of plausible deniability. Furthermore, those documents may undermine one of the conclusions of the Torture Report. According to Senator Ron Wyden, the Senate Torture Report found that “the CIA repeatedly provided inaccurate information about its interrogation program to the White House.” Perhaps the documents reportedly withheld by the White House undermine this conclusion, and instead show that the CIA operated with the full consent and knowledge of at least some people within the White House. Finally, the White House’s sensitivity about documents involved in the torture program may stem from the structure of the finding. As John Rizzo made clear, the finding authorizes not just torturing, but killing, senior al Qaeda figures. Bob Woodward even reported that that CIA would carry out that killing using Predator drones, a program CIA still conducts. And in fact, when the Second Circuit ultimately ruled to let the White House to keep the authorization phrase secret, it did so because the phrase also relates to “a highly classified, active intelligence activity” and “pertains to intelligence activities unrelated to the discontinued [torture] program.” Given what we know about the September 17, 2001 finding, that may well refer to President Obama’s still active drone program.

In any case, the White House’s seemingly contradictory statements about the Torture Report might best be understood by its past treatment of CIA documents. By releasing the DOJ memos and other materials, the White House provided what seemed to be unprecedented transparency about what the CIA had done. But all the while it was secretly hiding language describing what the White House has done.

This is a tricky situation. Unlike Wikileaks and their bulk data-dumps, Greenwald and Co. have released classified information in a more traditional, “sound practices of journalism” sorta way. Government officials get the opportunity to respond. Each story is hashed out and vetted in a normalized editorial process. Then the story is run. But daily revelations about the NSA using every imaginable electronic device to collect data are breeding suspicion and a growing sense that nothing is sacred (although dildos, electric razors and Magic Bullet food processors still seem safely anonymous). It seems that everything is in question, particularly in that redacted zone between the public and its national security minders at the helm of the United States of Surveillance. Thus, withholding information is an increasingly hard thing to defend. This creates a bit of a problem for Greenwald and his association with Omyidar which, it seems, is fair to question given what we know about the NSA’s penchant for doing business with many different businesses. Full disclosure of the Snowden documents may be, in the final analysis, the only antiseptic that will calm suspicions amongst allies.

Greenwald has already mounted a strong defense against accusations that the slow, methodical release of Snowden’s treasure-trove is a self-serving, profit-making process that, unlike a massive and direct data-dump, only serves the interests of his newspaper and his career. But these claims are likely to dog him—both from those who simply seek to punish him through proxies and by those who earnestly criticize a traditional “sound practices of journalism” approach to information that relies on the role of gatekeepers to decide how and when information is released over the Wikileaks-style which emphasizes the public’s inherent right to see immediately what lies behind the veil of secrecy. In this age of Twitterati, instant attacks, rapid-fire counter-attacks and Matrix-like convolution regarding who is plugged into whom, transparency is the only way to short-circuit festering suspicion—not just for governments, but also for the journalists, whistleblowers and the public they try to serve. Now it seems it’s up to Greenwald to clarify his association with Omidyar and for Omidyar to shine a bright light on PayPal’s associations with NSA.

Local police agencies have been denying access to records about this surveillance equipment under state public records laws. Agencies in San Diego, Chicago and Oakland County, Michigan, for instance, declined to tell the AP what devices they purchased, how much they cost and with whom they shared information. San Diego police released a heavily censored purchasing document. Oakland officials said police-secrecy exemptions and attorney-client privilege keep their hands tied. It was unclear whether the Obama administration interfered in the AP requests. "It's troubling to think the FBI can just trump the state's open records law," said Ginger McCall, director of the open government project at the Electronic Privacy Information Center. McCall suspects the surveillance would not pass constitutional muster. "The vast amount of information it sweeps in is totally irrelevant to the investigation," she said.

A court case challenging the public release of information from the Tucson Police Department includes an affidavit from an FBI special agent, Bradley Morrison, who said the disclosure would "result in the FBI's inability to protect the public from terrorism and other criminal activity because through public disclosures, this technology has been rendered essentially useless for future investigations." Morrison said revealing any information about the technology would violate a federal homeland security law about information-sharing and arms-control laws — legal arguments that that outside lawyers and transparency experts said are specious and don't comport with court cases on the U.S. Freedom of Information Act. The FBI did not answer questions about its role in states' open records proceedings.

But a former Justice Department official said the federal government should be making this argument in federal court, not a state level where different public records laws apply. "The federal government appears to be attempting to assert a federal interest in the information being sought, but it's going about it the wrong way," said Dan Metcalfe, the former director of the Justice Department's office of information and privacy. Currently Metcalfe is the executive director of American University's law school Collaboration on Government Secrecy project. A criminal case in Tallahassee cites the same homeland security laws in Morrison's affidavit, court records show, and prosecutors told the court they consulted with the FBI to keep portions of a transcript sealed. That transcript, released earlier this month, revealed that Stingrays "force" cellphones to register their location and identifying information with the police device and enables officers to track calls whenever the phone is on.

One law enforcement official familiar with the Tucson lawsuit, who spoke on condition of anonymity because the official was not authorized to speak about internal discussions, said federal lawyers told Tucson police they couldn't hand over a PowerPoint presentation made by local officers about how to operate the Stingray device. Federal officials forwarded Morrison's affidavit for use in the Tucson police department's reply to the lawsuit, rather than requesting the case be moved to federal court. In Sarasota, Florida, the U.S. Marshals Service confiscated local records on the use of the surveillance equipment, removing the documents from the reach of Florida's expansive open-records law after the ACLU asked under Florida law to see the documents. The ACLU has asked a judge to intervene. The Marshals Service said it deputized the officer as a federal agent and therefore the records weren't accessible under Florida law.

In February 2000, Judith Loether, a daughter of one of the three civilians killed in the 1948 B-29 explosion, discovered the government’s once-secret accident report for the incident on the Internet. Loether had been seven weeks old when her father died but been told by her mother what was known of her father’s death and the unsuccessful efforts to find out what had truly happened. When Loether read the accident report she was stunned. There were no national security secrets whatsoever, rather there was glaringly clear evidence of the government’s negligence resulting in her father’s death. Loether shared this information with the families of the other civilian engineers who had been killed in the incident and they joined together in a legal action to overturn Reynolds, raising the fact that the executive branch of the government had misled the Supreme Court, not to mention the parties to the earlier lawsuit.

Lou Fisher looked closely at the state secrets privilege in his book In The Name of National Security, as well as in follow-up articles when the Reynolds case was litigated after it was discovered, decades after the fact, that the government had literally defrauded the Supreme Court in Reynolds, e.g., “The State Secrets Privilege: Relying on Reynolds.” The Reynolds ruling emerged from litigation initiated by the widows of three civilian engineers who died in a midair explosion of a B-29 bomber on October 6, 1948. The government refused to provide the widows with the government’s accident report. On March 9, 1953, the Supreme Court created the state secrets privilege when agreeing the accident report did not have to be produced since the government claimed it contained national security secrets. In fact, none of the federal judges in the lower courts, nor the justices on the Supreme Court, were allowed to read the report.

Lowell states in his letter: “By relying solely upon ex parte submissions to justify its invocation of the state secrets privilege, especially in the unprecedented circumstance of private party litigation without an obvious government interest, 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. “ Lowell further claims that in “the typical state secrets case, the Government will simultaneously file both a sealed declaration and a detailed public declaration.” (Emphasis in Lowell’s letter.) To bolster this contention, he provided the court with an example, and offered to provide additional examples if so requested.

The Justice Department’s memorandum of law accompanying its motion to intervene states that once the state secrets privilege has been asserted “by the head of the department with control over the matter in question . . . the scope of judicial review is quite narrow.” Quoting from the U.S. Supreme Court ruling establishing this privilege in 1953, U.S. v. Reynolds, the brief adds: “the sole determination for the court is whether, ‘from all the circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.’”In short, all the Justice Department need claim is the magic phrase—”state secrets”—after assuring the court that the head of department or agency involved has personally decided it is information that cannot be released. That ends the matter. This is what has made this privilege so controversial, not to mention dubious. Indeed, invocation by the executive branch effectively removes the question from judicial determination, and the information underlying the decision is not even provided to the court.

As Fisher and other scholars note, there is much more room under the Reynolds ruling for the court to take a hard look at the evidence when the government claims state secrets than has been common practice. Fisher reminds: “The state secrets privilege is qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over what evidence is needed, and no fairness accorded to private litigants who challenge the government . . . . There is no justification in law or history for a court to acquiesce to the accuracy of affidavits, statements, and declarations submitted by the executive branch.” Indeed, he noted to do so is contrary to our constitutional system of checks and balances.

Time to Reexamine Blind Adherence to the State Secrets PrivilegeIn responding to the government’s move to intervene, invoke state secrets, and dismiss the Restis lawsuit, plaintiffs’ attorney Abbe Lowell sent a letter to Judge Edgardo Ramos, the presiding judge on the case on September 17, 2014, contesting the Department of Justice’s ex parte filings, and requesting that Judge Ramos “order the Government to file a public declaration in support of its filing that will enable Plaintiffs to meaningfully respond.” Lowell also suggested as an alternative that he “presently holds more than sufficient security clearances to be given access to the ex parte submission,” and the court could do here as in other national security cases, and issue a protective order that the information not be shared with anyone. While Lowell does not so state, he is in effect taking on the existing state secrets privilege procedure where only the government knows what is being withheld and why, and he is taking on Reynolds.

To make a long story short, the Supreme Court was more interested in the finality of their decisions than the fraud that had been perpetrated upon them. They rejected the direct appeal, and efforts to relegate the case through the lower courts failed. As Fisher notes, the Court ruled in Reynolds based on “vapors and allusions,” rather than facts and evidence, and today it is clear that when it uncritically accepted the government’s word, the Court abdicated its duty to protect the ability of each party to present its case fairly, not to mention it left the matter under the control of a “self-interested executive” branch.

Lowell explains it is not clear—and suggests the government is similarly unclear in having earlier suggested a “law enforcement privilege”—as to why the state secrets privilege is being invoked, and argues this case can be tried without exposing government secrets. Citing the Fitzgerald ruling, Lowell points out dismissal is appropriate “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.”

No telling how Judge Ramos will rule, and the government has a remarkable record of prevailing with the deeply flawed state secrets privilege. But Lowell’s letter appears to say, between the lines, that he has a client who is prepared to test this dubious privilege and the government’s use of it in this case if Judge Ramos dismisses this lawsuit. The U.S. Court of Appeals for the Second Circuit, where that ruling would be reviewed, sees itself every bit the intellectual equal of the U.S. Supreme Court and it is uniquely qualified to give this dubious privilege and the Reynolds holding a reexamination. It is long past time this be done.