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At a November 22 speaking engagement hosted by the Schiller Institute in New York City, former CIA analyst Ray McGovern endorsed House Resolution 428 and discussed the secret, 28-page finding on foreign government involvement in the 9/11 attacks. In remarks spanning more than 20 minutes, McGovern—who helped launch Veteran Intelligence Professionals for Sanity (VIPS)—puts the 28 pages in the context of the intelligence community’s advance awareness of the presence of 9/11 hijackers and its withholding of that knowledge from the FBI. He also shares interesting insights into the constraints placed on both the joint House/Senate intelligence inquiry that produced the 28 pages and the 9/11 Commission as well.

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.

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.

But a close look at the nature of the information Tsarnaev’s defense team has repeatedly requested from prosecutors in motions to the court suggests Tsarnaev’s lawyers are trying to pry loose something about the government’s relationship with the Tsarnaevs prior to the bombing on April 15, 2013.The key to this relationship may lie in a store of information that the Russians delivered to U.S. investigators in the days after the bombing. Equally, it may be found in warnings Moscow delivered to U.S. investigators before the attack. Either way, the U.S. government has fought hard to keep the lid on what it knows.The defense team’s motive in asking for such information is clear enough: they are angling for anything that might convince jurors to spare their client’s life. But the government’s stonewalling raises serious questions about why it wants to keep secret what the Russians knew about the Tsarnaevs, and how and when this information reached the FBI and the CIA.

Already, Tsarnaev is facing an uphill battle because of a widespread presumption of his guilt—a presumption fed, in large part, by law enforcement leaks and an unquestioning media. The FBI has been waging an apparent war on witnesses, characterized by the scorched-earth tactic of intimidating, arresting, deporting, and, in one case, killing them. That has rendered them inaccessible to Tsarnaev’s defense.These hardball tactics appear to be just part of the government strategy of suppressing information in the case. The Justice Department’s trump card is the ability to withhold information based on national security claims. That is in addition to an overwhelming financial advantage.

The defense team has thus repeatedly had to ask U.S. District Judge George A. O’Toole Jr. to compel the government to release information. That has eaten up a lot of time critical in preparing the defense case.Not that Tsarnaev has been given much of it. One statistic tells the story: Tsarnaev’s team has had about half of the preparation time that defense lawyers in federal death penalty cases have been granted over the past decade—18 months versus a median of 36. So the prospects for getting the whole story behind the bombing laid out in open court look bleak.

A district court in California has issued a ruling in favor of the National Security Agency in a long-running case over the spy agency’s collection of Internet records.The challenge against the controversial Upstream program was tossed out because additional defense from the government would have required “impermissible disclosure of state secret information,” Judge Jeffrey White wrote in his decision.ADVERTISEMENTUnder the program — details of which were revealed through leaks from Edward Snowden and others — the NSA taps into the fiber cables that make up the backbone of the Internet and gathers information about people's online and phone communications. The agency then filters out communications of U.S. citizens, whose data is protected with legal defenses not extended to foreigners, and searches for “selectors” tied to a terrorist or other target.In 2008, the Electronic Frontier Foundation (EFF) sued the government over the program on behalf of five AT&T customers, who said that the collection violated the constitutional protections to privacy and free speech.

But “substantial details” about the program still remain classified, White, an appointee under former President George W. Bush, wrote in his decision. Moving forward with the merits of a trial would risk “exceptionally grave damage to national security,” he added. <A HREF="http://ws-na.amazon-adsystem.com/widgets/q?rt=tf_mfw&ServiceVersion=20070822&MarketPlace=US&ID=V20070822%2FUS%2Fthehill07-20%2F8001%2Fdffbe72d-f425-4b83-b07e-357ae9d405f6&Operation=NoScript">Amazon.com Widgets</A> The government has been “persuasive” in using its state secrets privilege, he continued, which allows it to withhold evidence from a case that could severely jeopardize national security.   In addition to saying that the program appeared constitutional, the judge also found that the AT&T customers did not even have the standing to sue the NSA over its data gathering.While they may be AT&T customers, White wrote that the evidence presented to the court was “insufficient to establish that the Upstream collection process operates in the manner” that they say it does, which makes it impossible to tell if their information was indeed collected in the NSA program.  The decision is a stinging rebuke to critics of the NSA, who have seen public interest in their cause slowly fade in the months since Snowden’s revelations.

The EFF on Tuesday evening said that it was considering next steps and noted that the court focused on just one program, not the totality of the NSA’s controversial operations.“It would be a travesty of justice if our clients are denied their day in court over the ‘secrecy’ of a program that has been front-page news for nearly a decade,” the group said in a statement.“We will continue to fight to end NSA mass surveillance.”The name of the case is Jewel v. NSA. 

A federal judge is demanding that the government explain, photo-by-photo, why it can’t release hundreds, and perhaps thousands, of pictures showing detainee abuse by U.S. forces at military prison sites in Iraq and Afghanistan. In a courtroom in the Southern District of New York yesterday, Judge Alvin Hellerstein appeared skeptical of the government’s argument, which asserted that the threat of the Islamic State and Al Qaeda exploiting the images for propaganda should override the public’s right to see any of the photos. He was “highly suspicious” of the government’s attempt to declare the whole lot of the photos dangerous. “It’s too easy and too meaningless,” he said. Since 2004, the American Civil Liberties Union has been fighting for the release of photos from military investigations into prisoner abuse beyond those that were leaked from Abu Ghraib. The additional pictures reportedly show sexual assault, soldiers posing with dead bodies, and other offenses. The exact number of photos has not been disclosed in court, though former Senator Joe Lieberman has previously said that there are nearly 2,100.

Hellerstein first ordered the government to hand over a subset of the pictures in 2005. President Obama decided to release them in 2009, but Iraqi Prime Minister Nouri al-Maliki and the top American general in Iraq implored him not to. Congress then passed a law amending the Freedom of Information Act to allow the Secretary of Defense to certify that publishing the pictures could put American lives at risk, which then-secretary Robert Gates did. The ACLU continued to fight the issue in court, and last August, Hellerstein ordered that the government needed to justify withholding each picture individually.

Greece is getting ready to default on at least some of its debt payments, according to the Financial Times. The country has entered a pretty dire fiscal situation. It desperately needs to unlock bailout funds from its creditors, but progress negotiating that cash is shaky at best. If Athens doesn't get its next €7.2 billion ($7.58 billion) bailout tranche by the April 24 Eurogroup meeting of European finance ministers, default becomes a lot more likely, and it seems as if the government is already preparing for the worst. Here's the FT: Greece is preparing to take the dramatic step of declaring a debt default unless it can reach a deal with its international creditors by the end of April, according to people briefed on the radical leftist government’s thinking. The government, which is rapidly running out of funds to pay public sector salaries and state pensions, has decided to withhold €2.5bn of payments due to the International Monetary Fund in May and June if no agreement is struck, they said. "We have come to the end of the road ... If the Europeans won't release bailout cash, there is no alternative [to a default]," one government official said.

Soon after the U.S. and other major powers entered negotiations last year to curtail Iran’s nuclear program, senior White House officials learned Israel was spying on the closed-door talks. The spying operation was part of a broader campaign by Israeli Prime Minister Benjamin Netanyahu’s government to penetrate the negotiations and then help build a case against the emerging terms of the deal, current and former U.S. officials said. In addition to eavesdropping, Israel acquired information from confidential U.S. briefings, informants and diplomatic contacts in Europe, the officials said.

The espionage didn’t upset the White House as much as Israel’s sharing of inside information with U.S. lawmakers and others to drain support from a high-stakes deal intended to limit Iran’s nuclear program, current and former officials said. “It is one thing for the U.S. and Israel to spy on each other. It is another thing for Israel to steal U.S. secrets and play them back to U.S. legislators to undermine U.S. diplomacy,” said a senior U.S. official briefed on the matter.

The U.S. and Israel, longtime allies who routinely swap information on security threats, sometimes operate behind the scenes like spy-versus-spy rivals. The White House has largely tolerated Israeli snooping on U.S. policy makers—a posture Israel takes when the tables are turned. The White House discovered the operation, in fact, when U.S. intelligence agencies spying on Israel intercepted communications among Israeli officials that carried details the U.S. believed could have come only from access to the confidential talks, officials briefed on the matter said. Israeli officials denied spying directly on U.S. negotiators and said they received their information through other means, including close surveillance of Iranian leaders receiving the latest U.S. and European offers. European officials, particularly the French, also have been more transparent with Israel about the closed-door discussions than the Americans, Israeli and U.S. officials said.

The Pentagon says Master Sgt. Joshua Wheeler, the Delta Force soldier who died last week in a hostage rescue mission in Iraq, was the first U.S. service member killed in action in the ISIS war. But Wheeler was not the first combat casualty. Five other service members have been “wounded in action” since the U.S. first sent troops back into Iraq last year, according to statistics from the Pentagon and interviews with officials in Iraq (PDF). But how and when they were injured, the Pentagon refuses to say.As the Obama administration holds to the increasingly dubious claim that U.S. troops are not engaged in combat against the self-proclaimed Islamic State, the Pentagon is withholding details about its wounded that would give key insights into the kind of fight American troops are facing in Iraq. Were any of the five shot by the Iraqi forces they are training? Did a mortar round shot at their base injure a soldier? Has ISIS wounded a U.S. service member?According to U.S. Central Command, which oversees military action in the region, the details of the wounded are not available, despite repeated requests for such basic information. The only specifics available are from a Washington Post story, which reported the first service member was wounded in March, just south of Baghdad, while in a guard tower. He was struck in the face by bullet fragments, according to the report, while coming under enemy fire.

In announcing that the U.S. would fight ISIS, Obama was adamant the U.S. could “degrade and ultimately destroy” ISIS without U.S. combat troops. But the number of troops has slowly increased since that September 2014 pronouncement, from a few hundreds advisers to thousands of troops, at least some of them conducting combat missions. During a June 2014 press conference, Obama stressed that Americans would not be at risk: “I think we always have to guard against mission creep, so let me repeat what I’ve said in the past: American combat troops are not going to be fighting in Iraq again.”

That the administration does not publicly admit that troops are in combat has stung many in uniform who feel such distinctions are insulting. That’s particularly true in the halls of the Pentagon, filled with war veterans of Iraq and Afghanistan, where the consensus is: “If I am being shot at by enemy forces, I am in combat.”On paper at least, the U.S. military treats the troops serving in Iraq as if they are in a war zone. American service members in Iraq receive hazardous-duty pay, a gun, and live ammunition—standard fare for troops in combat.

The NYPD has used cell-site simulators, commonly known as Stingrays, more than 1,000 times since 2008, according to documents turned over to the New York Civil Liberties Union. The documents represent the first time the department has acknowledged using the devices. The NYPD also disclosed that it does not get a warrant before using a Stingray, which sweeps up massive amounts of data. Instead, the police obtain a “pen register order” from a court, more typically used to collect call data for a specific phone. Those orders do not require the police to establish probable cause. Additionally, the NYPD has no written policy guidelines on the use of Stingrays. Stingrays work by imitating cellphone towers. They force all nearby phones to connect to them, revealing the owners’ locations. That means they collect data on potentially hundreds of people. They are small enough to fit in a suitcase, or be mounted on a plane.

When they were originally developed in 2003, Stingrays were designed for military use. But in the past decade, they have increasingly been purchased by law enforcement agencies. According to the ACLU, Stingrays are used by at least 59 police departments in 23 states, and at least 13 federal agencies, including the DEA, FBI, and the IRS. Because most departments withhold information about Stingrays, these numbers likely underrepresent the total.

Stingrays have long been a topic of concern for privacy activists. “Cell-site simulators are powerful surveillance devices that can track people, including in their homes, and collect information on innocent bystanders,” said Mariko Hirose, a senior staff attorney at the NYCLU.  “If they are going to be used in communities the police should at minimum obtain a warrant and follow written policies.” Instead, law enforcement agencies have fought to keep Stingrays secret, even dropping criminal cases to avoid disclosing anything about them. The FBI has forced local police agencies to sign Stingray-related non-disclosure agreements, claiming that criminals and terrorists who know about Stingrays could take countermeasures against them. The increasing use of Stingrays, coupled with the lack of transparency, has alarmed civil liberties groups. “I think it’s critical to have transparency about the use of technology like Stingrays,” said Faiza Patel, an attorney with the Brennan Center for Justice. “That’s what allows courts, the public, and our elected officials to weigh in on the proper rules.”

Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.

We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.

Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”

The Obama administration went ahead with a $1.3 billion arms sale to Saudi Arabia last year despite warnings from some officials that the United States could be implicated in war crimes for supporting a Saudi-led air campaign in Yemen that has killed thousands of civilians, according to government documents and the accounts of current and former officials.State Department officials also were privately skeptical of the Saudi military's ability to target Houthi militants without killing civilians and destroying "critical infrastructure" needed for Yemen to recover, according to the emails and other records obtained by Reuters and interviews with nearly a dozen officials with knowledge of those discussions.U.S. government lawyers ultimately did not reach a conclusion on whether U.S. support for the campaign would make the United States a "co-belligerent" in the war under international law, four current and former officials said. That finding would have obligated Washington to investigate allegations of war crimes in Yemen and would have raised a legal risk that U.S. military personnel could be subject to prosecution, at least in theory.

For instance, one of the emails made a specific reference to a 2013 ruling from the war crimes trial of former Liberian president Charles Taylor that significantly widened the international legal definition of aiding and abetting such crimes.The ruling found that "practical assistance, encouragement or moral support" is sufficient to determine liability for war crimes. Prosecutors do not have to prove a defendant participated in a specific crime, the U.N.-backed court found.Ironically, the U.S. government already had submitted the Taylor ruling to a military commission at Guantanamo Bay, Cuba, to bolster its case that Khalid Sheikh Mohammed and other al Qaeda detainees were complicit in the Sept 11, 2001 attacks.The previously undisclosed material sheds light on the closed-door debate that shaped U.S. President Barack Obama’s response to what officials described as an agonizing foreign policy dilemma: how to allay Saudi concerns over a nuclear deal with Iran - Riyadh's arch-rival - without exacerbating a conflict in Yemen that has killed thousands.The documents, obtained by Reuters under the Freedom of Information Act, date from mid-May 2015 to February 2016, a period during which State Department officials reviewed and approved the sale of precision munitions to Saudi Arabia to replenish bombs dropped in Yemen. The documents were heavily redacted to withhold classified information and some details of meetings and discussion.(A selection of the documents can be viewed here: tmsnrt.rs/2dL4h6L; tmsnrt.rs/2dLbl2S; tmsnrt.rs/2dLb7Ji; tmsnrt.rs/2dLbbIX)

In a statement issued to Reuters before Saturday's attack, National Security Council spokesman Ned Price said, "U.S. security cooperation with Saudi Arabia is not a blank check. ... We have repeatedly expressed our deep concern about airstrikes that allegedly killed and injured civilians and also the heavy humanitarian toll paid by the Yemeni people."The United States continues to urge the Kingdom to take additional steps to avoid "future civilian harm," he added.

As opposed to the current patchwork of states that have legalized either medical marijuana, its recreational use, or both, the analysis looked at what could happen if the U.S. government made it legal to sell marijuana nationwide and included these major findings: If full legalization occurred in all 50 states today, there would be an excess of 782,000 jobs, and would increase to 1.1 million jobs by 2025.Full legalization would result in more legal businesses participating in the market, more consumers participating in the legal market, and more employees on official payrolls, resulting in $4 billion in payroll taxes. By 2025, payroll deductions would increase to $5.9 billion.Assuming a sales tax at the federal level was implemented at 15%, the total tax revenues from 2017–2025 would theoretically be $51.7 billion. This amount of revenue would be entirely new revenue to the U.S. Treasury, as there are currently no federal sales or excise taxes.By combining the business tax revenues, the payroll withholdings based on the theoretical employment required to support the industry, and the 15% retail sales tax, one can calculate the total federal tax revenue potential of legalization: The combined total is estimated to be $131.8 billion.The difference between the current structure and the theoretical model is a $76.8 billion increase in federal tax revenues. The new data comes in the wake of polling that shows historic levels of support for marijuana legalization nationwide. In October of 2017, a Gallup survey found that 64 percent of Americans now favor legal marijuana—the highest level ever recorded. It's also an issue that receives backing from people across the political spectrum. According to the Gallup poll, a majority of Republicans (51%) are in favor while Independents (67%) and Democrats (72%) support legalization at even higher levels.