← The Lawfare Podcast
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- [00:01]
Alan Rosenstein
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath McCrispy strips are now at McDonald's tender, juicy and its own sauce. Would you look at that. Well, you can't see it, but trust.
- [00:40]
Christina Koningasor
Me, it looks delicious.
- [00:42]
Alan Rosenstein
New McCrispy strips now at McDonald's.
- [00:47]
Caroline Cornett
My husband and I recently realized that neither of us were getting the sleep we deserved. So we sat down and talked about our ideal beds for him. So soft as feathers for me, firm as a plank. This would be a huge issue if it weren't for the Sleep Number Smart Bed. Thankfully, with our new Sleep Number Smart Bed, we can each dial in our desired Sleep Number settings to our ideal comfort and finally get the sleep we deserve. Plus, the Klymit series feature makes sure our bed stays nice and cool through the warm summer months. Why choose a Sleep Number Smart Bed? So you can choose your ideal comfort on either side. And now it's the Sleep Number Everything Smart Bed Sale and every Smart Bed and base are on sale during our Memorial Day event. Up to 50% off limited time, exclusively at a Sleep Number store near you. See store or sleepnumber.com for details. I'm Caroline Cornett, intern at Lawfair, with an episode from the Lawfair archive for May 17, 2025. On Friday, a federal judge heard arguments on whether the government can invoke the State Secrets privilege to withhold details about what it's done to facilitate the return of Kilmar Abrego Garcia, who was mistakenly deported to a prison in El Salvador. Lawyers for Abrego Garcia argued the government has no basis for invoking the privilege, which is reserved for information that could harm the foreign affairs or national security interests of the United States. For today's Archive episode, I selected an episode from January 4, 2022, in which Christina Koningasor joined Alan Rosenstein to discuss secrecy creep, the phenomenon of state and local governance invoking government secrecy rationales that historically applied only to the president and national intelligence community. They discussed the increasingly common practice, how government secrets affect government transparency, and more.
- [03:04]
Alan Rosenstein
I'm Alan Rosenstein and this is The Lawfare Podcast. January 4, 2022. Government secrecy is pervasive when it comes to national security and foreign affairs, but it's becoming more and more common for state and even local governments. From police departments to mayor's offices to invoke government secrecy rationales that in the past, only the president of the United States and the national intelligence community were able to claim. While some of the secrecy is no doubt necessary to ensure that police investigations aren't compromised and state and local officials are getting candid advice from their staff, government secrecy directly threatens government transparency and thus democratic accountability. I spoke about these issues with Christina Kuningizor, a law professor at the University of Utah and the author of Secrecy Creep, a recently published article in the University of Pennsylvania Law Review, along with a Lawfare post summarizing her work. It's the Lawfare podcast January 4th. Christina Koningizor on Secrecy Creep so let's start with how you open the Lawfare piece with the description of the famous Glomar case. The facts of that case are fascinating. So can you describe them and how that turned into one of the most important government secrecy doctri?
- [04:14]
Christina Koningasor
Yeah, it really is just an astonishing sort of set of facts that gave rise to this really powerful secrecy tool. So my understanding is that there was a sunken Soviet nuclear submarine that went missing, I think, in 1968. 67. 68. And the Soviet Union, they searched for it, couldn't find it. And the United States had sort of a better sense for where it might be. And so they did some searching and eventually found it. But they didn't want to let the Soviet Union know that they had found it. And it was somewhere very, very deep on the ocean floor in the Pacific Ocean. And so what they wanted to do was figure out some way to lift this ship off of the bottom of the sea. And yet to do so, it was sort of more technologically complex and would require this sort of crazy feat of engineering that no one had done before. And so they spent years and billions of dollars building this giant 600 foot ship that had this giant claw outfitted on it. And it would drop this claw all the way to the bottom of the ocean floor, grab the sub, and then raise it, hopefully without breaking apart. But they needed to do all this without letting anyone know what was happening. And so they approached Howard Hughes, the sort of famous eccentric billionaire inventor, and said, can you pretend like you're actually mining this rare mineral from the ocean floor and this is what this ship is for. And Howard Hughes agreed. And so they named the ship the Hughes Glomar Explorer. The Glomar actually came from the name of the engineering company that helped build the ship, Global Marine. And so the way they kind of helped sell it was they named this ship in a way that would sort of reflect the fact that Howard Hughes was the owner and was conducting this mining expedition. And so they went in, and that was how they essentially tried to sort of obscure what they were doing from the Soviet Union.
- [06:02]
Alan Rosenstein
And so how did that turn into what we now know today as the Glomar Doctrine? What is the Glomar Doctrine?
- [06:09]
Christina Koningasor
Yeah. So eventually what happened is, you know, unsurprisingly, word of this expedition got out, and there's actually a very kind of complicated series of facts that I won't go into here around what was actually at issue. It ended up being. There sort of ended up being a question of whether the Hughes Glomar Explorer cover story was actually a cover story for something deeper. But. But set aside this complicated set of facts, what ended up happening is a bunch of journalists sort of got word of this. They wanted to know what was happening. And so they went to the CIA and they said, we have heard rumors of this really complicated expedition. And so we're going to submit FOIA requests, which is requests under the Freedom of Information act, which is the federal law that allows any individual to submit requests for any documents to government agencies. And they said, we want to know what's going on with this program. You know, what is it? What records do you have relating to it? And this kind of left the CIA in a bit of a bind, because at this point, it was now the mid-70s, we're in the wake of Watergate, there's some sort of sensitivity around not wanting to lie to the public. And so they don't want to lie and say they don't have records. They obviously do, they have many. But they also don't want to say, we have records, but we can't give them to you, because that might sort of alert the public at large and other governments that they found this ship and there was this expedition. And so they came up with this kind of new response. They said, we can't actually tell you whether we have records, because if we tell you that, then that is itself going to reveal a protected national security secret, which is whether this program exists. And so there ended up being, you know, sort of federal litigation over whether or not this was allowed. And the D.C. circuit ultimately said, yes, this is allowed. And so from this very kind of classic national security sort of situation, right, we need to protect information relating to Soviet nuclear submarine. That is sort of how it originated. And yet over time, the CIA began to use it a bit more. The FBI started using it, Other national security agencies started relying on it. And from there it sort of spread. Right. Other federal agencies that don't engage in national security or even law enforcement work started using it. The post office has used it. And then eventually it also began to spread to the state and local context. So state and local government actors, especially state and local police, started saying, well, you know, we do really sensitive investigations as well. There's information that we think the sort of fact of the existence of a program or operation we have going needs to be protected. And so we're going to start using this tool as well.
- [08:44]
Alan Rosenstein
So let's then talk about the state and local case. That's the main topic of your Lawfare piece and of the law review article that just recently came out that the Lawfare piece is adapted from. And it's this idea of secrecy creep, right, that doctrines like glomar and other doctrines have spread from the national security, national government context to the state and local context. And so before we talk about why this has happened, can you describe the scope of this? So you just mentioned that there are state and local police departments that are using Glomar. Who else is using it? What other doctrines are being used? How broad of a phenomenon are we talking about?
- [09:24]
Christina Koningasor
About. Yeah. So this is actually a really difficult question to answer. It's something I spent a lot of time researching and trying to figure out. And so I'll kind of first address the Glomar as an example and then sort of broaden my scope. So when it comes to the Glomar, the Glomar itself actually hasn't been officially adopted by Congress. It was a creation by the CIA that the federal judiciary then blessed. But the text of FOIA doesn't say anything about it because Congress, of course, could have amended the statute to say, we don't like this. We don't want you to use this. They also could have amended it to explicitly say this is permitted, but they haven't. So the text of the federal law doesn't say anything about it. Two states went farther than Congress and actually amended their state public records law. So every state has sort of an equivalent to federal FOIA that allows any individual to submit a request for records created by state and local governments under this state law. And so two state legislatures have amended their public records laws to explicitly allow for glomars, and both did so in a way that was limited only to law enforcement agencies. So one was Maine and one was Indiana. Recently, actually, only a few months ago, Maine amended its law again and eliminated this provision partly as sort of its broader package of reforms in the wake of the murder of George Floyd and sort of the nationwide protests that followed. So now Indiana is the only state that explicitly allows it in the text of the statute itself. That being said, other states have gone sort of the route that the federal law did, and state courts have, have approved it. This is a little bit harder to track because there's so many state court decisions, many of which don't appear in the, in the reporters that we frequently use. And so I don't know how often this has happened, but there are some really sort of high profile examples, the most notable of which is a decision by the Court of Appeals in New York, which is New York State's highest court. They in 2018 expressly allowed the NYPD to use the glomar and issue the glomar under the New York public record statute. So that's sort of another route that it happens. Now, what's also happening, we know sort of anecdotally, is that police departments all across the country are just issuing these without any sort of official sanction. So someone submits a request to the New Jersey State Police Department, and the New Jersey State Police Department at the administrative level denies the request and says, I'm not even going to tell you whether we have responsive records because that itself is a protected secret. And so that is very much happening all over the country. It's really, really difficult to track how frequent its uses at that administrative phase, because there's 18,000 state and local police departments in the country. You know, they're issuing hundreds of denials, thousands of denials. And so there's just no good way of knowing sort of how frequent it is. That being said, sort of anecdotally, we have seen this pop up in states all across the country. To give just one example, which I cite in my Lawfare piece, I submitted a bunch of public records requests to agencies across the country asking for records that relate to their use of the glomar. So policies they have around whether their agency is allowed to issue glomars and under what circumstances, copies of denials where they've used it. And one police department that I submitted it to was the Pennsylvania State Police. And they responded to me saying they didn't have any responsive records. So they said, we don't have any records relating to use of the glomar. But as I kind of continued reading through the letter, there was sort of a series of paragraphs which I later did some more research and found out our kind of boilerplate language they include in every Response. And they said in that letter, to the extent that your request can be construed as seeking covert law enforcement investigation material, we can neither confirm nor deny the existence of those records. So.
- [13:18]
Alan Rosenstein
So you got. You got meta. You got meta. Glomar. Glomar on a glomar.
- [13:21]
Christina Koningasor
Exactly. In my request for materials about the glomar, I got a glomar, which just gives you a sense for, in some areas, just kind of how routine this has been and how far we've really traveled from this pretty extraordinary set of circumstances that gave rise to the birth of this response.
- [13:39]
Alan Rosenstein
Do we have, or do you have a sense of what the legal theory is for why these state agencies think that they can use that a glomar is an acceptable response under their records laws? I mean, is it just sort of a general idea that implicit in a records law is the idea that the legislature didn't want the records law to be used to harm. I guess it's not national security in the case of state agencies, so law enforcement, and therefore we just impute a kind of the existence of a glomar? Or is there some more specific reason that these agencies think that glomar is an appropriate response under the laws that govern record requests?
- [14:18]
Christina Koningasor
Yeah. So what you've described is sort of the. To the extent that this issue gets litigated in that kind of level of detail and sophistication, that's often the argument, you see. So you see in the New York Court of Appeals case, this kind of tangle between the majority opinion and the dissent over whether or not the state law really can support this reading of the statute. And so you have a kind of debate between the justices over this question. You know, was the intent of the drafters to. When they wanted to protect law enforcement material, to protect it in this particular way. And can. Can the glomar kind of be supported by the text of the statute and the kind of purpose of the statute? That is sort of a debate that you. That you see happen when it gets to kind of that level of scrutiny. I think more often what you see is there's a kind of this response is very much sort of crept into our public conscience. You know, you hear it. You hear the phrase cannot confirm nor deny the existence or non existence, you know, in sort of popular language a lot. And so I think there's this sort of general understanding that this is possible. And so without necessarily a lot of thought, agencies across the country are like, well, rather than having to deal with this and sort of figure out what to say we can invoke this response and, and there's not a lot of thought given to it. So one example that I actually don't cite in my piece, but I'm. I talk about in a forthcoming piece is what I call the soft glomar, where agencies will kind of, they won't invoke this sort of very famous language, but they'll respond in such a way that it's impossible to know whether they have records or not. So there's an agency in North Dakota Police Department that has this kind of form response that they issue in response to records requests. And there's different buckets you can check. And so one will be we have no responsive records. And one will be, to the extent we have responsive records, we can't release them to you because they're protected under, you know, one of these following exemptions. And the agency will just check both boxes. And so you get this response and you have no idea what's going on. Do they have records? Do they not? Are they glomaring you? It just becomes really unclear. And so I think, you know, sometimes there is this sort of deep contemplation like the New York Court of Appeals engaged in of, you know, can the statute itself really support this reading and support this powerful tool? But more often there's just this kind of, well, this is something we can say and it allows us to withhold these records and so we're going to do it. And there's not a lot of thought necessarily given to whether that's an appropriate.
- [16:47]
Alan Rosenstein
Response in your piece. Glomar is the most salient of the security creep that you talk about, but there are other forms in which this occurs. And so I was curious if you could talk about what are the non glomar examples of security creep that you see.
- [17:04]
Christina Koningasor
Yeah, glomar is kind of like the easiest to wrap your head around in some ways, but there are a bunch of other examples I give. So I kind of started, the way I methodologically I approached this was I had a list of kind of special secrecy tools that clearly originated in the national security context. And I came up with a list of 12. And then I sort of tried to track down which had actually migrated and a bunch have not. So for example, we have the federal classification system that's really powerful and robust and has all sorts of problems. But we haven't seen, except for one kind of exception which I'll talk about, we haven't seen state and local governments trying to create a state level classification system. So that's an example where we haven't really seen secrecy creep. The one exception is the NYPD has sort of bizarrely stamped records secret. As far as I can tell, there's. There's no legal basis. It's just sort of imitating federal government policies and the federal classification system. But other than that, there's sort of no example of this classification system becoming adopted by state and local governments. But in addition to the glomar, we have seen a couple other. A few other examples. So one is executive privilege. So in United States v. Nixon, this very famous 1974 Supreme Court case that addressed whether or not President Nixon would be forced to turn over tapes from his Oval Office conversations to another branch of the federal government. And the question was whether or not these types of communications were protected by executive privilege, which was rooted in sort of constitutional separation of powers considerations. And the Supreme Court said, yes, there is sort of a fairly robust set of protections for confidential presidential communications. We want to make sure that the President can speak candidly, that he can have an honest conversation with his advisors. And it's a little bit unclear how much of this powerful secrecy protection is sort of tied to the President's military and diplomatic responsibilities, the sort of national security responsibilities. Sometimes the language the court used sort of suggests that, you know, any head of government might need these protections because they need to have candid good advice. And at other times, they seem to sort of suggest that actually this protection is really intertwined with the kind of federal head of states special role in negotiating treaties and in conducting war and sort of that the, you know, this set of protections is really, really integrally connected to his or her national security responsibilities. And so pretty soon after this decision came down, state governors started saying, well, actually, you know, I should enjoy these protections as well. And they're rooted in state constitutional separation of powers principles. And I also need to engage in candidate advice with my advisors and would benefit from these sort of robust. This robust secrecy tool. And so a bunch of states, state supreme courts sort of said, yes, you're right, and allowed governors to invoke this privilege. And then eventually you started to see city mayors invoke it and say, well, I also engage in really important responsibilities and I need to have candid advice from my advisors. And so I should also be granted access to this really powerful secrecy tool. And so now, you know, we've gone from the President sitting in the Oval Office discussing, you know, to know, potential treaty negotiations, etc. Down to city mayors saying, well, this is sort of similar enough that I need this tool as well. And so, you know, I think there's some serious questions that this raises over whether or not this privilege is really too powerful for those types of protections. You know, the farther down we go in this kind of hierarchy, governmental hierarchy, and whether or not when the Supreme Court articulated the scope and nature of this privilege, what they really had in mind, and whether the kind of policy and historical and contextual justifications that undergird the federal privilege really makes sense once you get into the goobernutorial context, and then of course, once you get into the mayoral context as well.
- [21:21]
Alan Rosenstein
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- [22:21]
Alan Rosenstein
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- [23:33]
Christina Koningasor
Yeah, I mean, it's a bit hard to say because there's a few different types of tools that I'm talking about, and the timelines are a little staggered. So a lot of these national security protections sort of originated in the 60s, 70s, and in some ways, I think were a response to the kind of broadening of governmental transparency efforts that happened at the time. Right. This is when you had FOIA was enacted, you had government open meetings laws, you had this sort of push towards transparency. And so some of these doctrines came out of a response to that. And so depending on which sort of specific tool we're talking about, sometimes the kind of modeling came pretty close after. So some of the Gobert notorial privilege cases date from, you know, a few years after the Supreme Court recognized the privilege in U.S. v. Nixon, and some are kind of much more recent in origin. So the examples that I could find of state and local governments using the glomar are all much more recent. And I think part of that probably has to do with this kind of confluence events that we saw in the wake of September 11th. So, you know, in the 1950s, 60s, 70s, we saw state and local police departments kind of engaged in a lot of intelligence gathering on behalf of the federal government. And so you saw kind of a sort of close nexus between these federal and especially local agencies and sort of intelligence gathering under J. Edgar Hoover, et cetera. And then in the wake of sort of the abuses of power that came to light, a lot of the state and local police departments, my understanding is they kind of stepped back from these types of efforts and stopped engaging in that kind of intelligence gathering effort. Whereas the federal government responded different way. They still engaged in a lot of these intelligence gathering operations, but they enacted a lot, you know, a series of kind of robust checks. So this is when we first had agency inspector generals, and we have the permanent, you know, the standing committees in Congress devoted to intelligence oversight. And so you had this kind of divergence where the federal government sort of ramped up its oversight efforts and state and local police departments kind of stepped back from intelligence gathering. And then in the wake of 9, 11, that kind of reversed. And you see a lot of local police departments start cooperating with federal agencies again in these types of activities. And so as you kind of have this sort of closer Working relationship. I think that's when you see a lot of these state and local police departments especially start to use some of these secrecy tools that the federal government has kind of long been utilizing as well.
- [26:17]
Alan Rosenstein
One of the more interesting points that I thought you made, put it both in your piece and in the article, was that the rise of state and local law enforcement secrecy in particular copies the use of these doctrines by federal agencies and especially the FBI and the intelligence community. And so is this just a matter of copying the federal government? What I think in your article you talk about, you describe as institutional isomorphism or are the feds encouraging the state and locals to be less transparent? And in particular, your article has a very interesting discussion of how the, the nypd, the New York Police Department became more secretive and so curious if you could talk about what happened there.
- [26:54]
Christina Koningasor
Yeah, so in the wake of 9 11, you see the NYPD sort of start to assume a lot of the kind of behaviors and structures of the CIA. So you had this kind of, this overlap of kind of personnel. You have this big figure from the CIA go to the intelligence unit of the NYPD and he starts to bring on some former CIA officers on board and they start kind of using some of these CIA tactics and language. And so I do think you, you have this kind of personnel cross pollination. And I don't have kind of evidence for this, but I suspect that as you saw this sort of explosion of joint terrorism task forces and fusion centers, you know, this kind of sudden and dramatic overlap of federal and local law enforcement efforts in the wake of 9 11, that that is probably you know, part of, of where these streams started springing up, that as kind of the, the relationship got closer, some of these secrecy tools sort of passed along those lines. Another thing that I think we saw happen was as local police departments started getting access to surveillance technologies that were developed for military and national security purposes, these secrecy tools kind of came along with them. So one example where we saw that pretty clearly was the Stingray. So this was a technology that was developed by a private company, Harris Corporation, but it was initially for kind of military and federal intelligence use. Eventually it sort of state and local police departments were granted access to it, but only if they would agree to very, very strict secrecy protections. And they signed these really powerful NDAs that essentially didn't allow them to disclose their use, their reliance on this tool to anyone, even within other government actors, within state and local governments.
- [28:45]
Alan Rosenstein
And just to clarify for the audience, the Stingray is the technology that allows for the basically the tracking of cell phones in a geographical area.
- [28:54]
Christina Koningasor
Yeah, so the Stingray is the like, it's actually the sort of generic term is cell site simulator. And Stingray is sort of the Harris Corporation specific version of this. And yes, it's a powerful tool that allows sort of a host of different activities. But essentially what happens is the federal government uses it and your cell phone connects to this device, thinking it's a cell tower, and then they're able to sort of gather a variety of typ the cell phones of people in that sort of geographic area.
- [29:27]
Alan Rosenstein
So I think it's fair to say that you are pretty skeptical of a lot of this secrecy creep, or at the very least, you have a lot of concerns around it. So assuming you could describe kind of what are the main concerns you have and also if they're different than what your concerns might be around excessive secrecy at the federal level, is this bad just because secrecy is bad and this is more secrecy, or is there something especially troubling about the secrecy doctrines at the state and local levels?
- [29:59]
Christina Koningasor
So I do think these tools are troubling in all sorts of ways when they're used for the purposes that they were created. So I don't want to say that, you know, use of the glomar by the CAA isn't problematic, because I think it is. But I kind of, I want to set all that aside in cabinet because I think that's sort of a different paper and a different discussion. So putting aside the sort of many problems there are with these tools being used as they're intended, I think there are really kind of special concerns that arise as they travel into the state and local context, above and beyond kind of, you know, the sort of baseline concerns we might have about whether any government should have such powerful secrecy protections. And so I think these take sort of different flavors. So kind of one set of concerns I have is that there's kind of a legal discordance that arises. So a lot of these tools were developed in kind of a specific constitutional historical sort of policy context that's unique to the federal government. And so the justifications that were used to kind of undergird them, they sort of become destabilized as they cross over into the state and local context. So one example is in U.S. v. Nixon. The Supreme Court's opinion, you know, has a whole bunch of reasons why it has decided that the US President needs access to the secrecy tool. But they do say at one point, you know, we're no stranger to secrecy. In fact, the US Constitution was drafted in secret. Right. There are reasons why we need to have really sensitive negotiations happen in a way that is protected and not in full view of the public. Right. We wouldn't have the Constitution that we have today if it had been drafted in open view is sort of the sense. And yet, if you look at many state constitutions, that was not the same history. So a number of state constitutions were drafted in public and kind of transcripts of the negotiations were published contemporaneously in newspapers. And so that isn't to say that that fact alone means governors shouldn't have access to executive privilege, but it just gives you an example of the ways that the kind of justifications that that fit in the federal context might not necessarily fit in the same way once we get into the state and local context. So that's one kind of specific concern I have. Another is that I think these tools make a lot of sense or make more sense in the federal context when you sort of look at the broader set of checks and balances that exist when it comes to the federal government and especially the national security states. So, you know, at the federal government you have, as I mentioned before, agency inspector generals and permanent congressional committees engaged in oversight of intelligence activities, and you have this kind of robust set of intergovernmental protections. And then you also have the sort of very powerful and well funded national press. So, you know, I used to work as a lawyer at the New York Times, and I know that the reporters there are working pretty much day and night to try and uncover national security secrets. There's just an enormous amount of scrutiny from the press and from, you know, national organizations like the ACLU and Judicial Watch sort of trying to get access to information about what the government is up to. But you just don't see that at the state and local level. For most state and local governments, there are exceptions. You know, the local press in New York is very focused on what the NYPD is doing, and there's a lot of money still sort of devoted to covering that. But in most places, we've seen a pretty rapid and catastrophic collapse of the local press. And so you just don't have reporters that are out there kind of digging and trying to figure out what's going on. And so when you already have such pretty giant barriers to public oversight of state and local governments in most places, do we really need to give these actors these incredibly powerful secrecy protections on top of the kind of structural barriers that already exist?
- [34:08]
Alan Rosenstein
Do you think that there's any room for something like A glomar in the state and local context. It does strike me as intuitive, or at least I can imagine some hypotheticals where a state law enforcement agency really is engaged in a very sensitive operation and it really is not in a position to provide responsive records. I mean, do you think that in that case something like a glomar would be reasonable, or do you think there needs to be just an across the board banning of these sorts of legal responses?
- [34:41]
Christina Koningasor
I don't think there necessarily needs to be an across the board banning of every single sort of tool I'm talking about. That might be the case in the future. You know, if a state were to sort of try to recreate a classification system, I might object to that. But I certainly don't want to take the position that the glomar is never, should never be used by state and local governments, because there's so many different scenarios that could come up. And like you said, we could sort of spin off hypotheticals all day where it might be a close call. That being said, I think if it's going to be used, it needs to be done with very, very kind of strict guidelines. So already you had the Court of Appeals in New York say, okay, the NYPD can use the glomar in this kind of specific context, but this, you know, we're not saying you can use it all the time. They have this kind of language sort of suggesting that it's. You should be rare. And yet, then, of course, the NYPD turned around, and not very much longer after this decision came down, there was a protest. And a bunch of people who were at the protest realized that their phones weren't behaving as they should. And so they submitted requests to the NYPD saying, you know, were there any surveillance technologies being used on our phones at this protest? And the NYPD responded with the glomar. And luckily the court that. That heard the case when the request was sued said, no, no, no, no. Just because you're allowed to issue the glomar doesn't mean you can use it anywhere in any situation you want. And this was a case where you had people out on the streets engaged in First Amendment protected activity. There's no allegations of any sort of criminal wrongdoing. You can't just use the glomar because you feel like it's. But I think even though that was, in my view, a happier outcome, there is this fear that if you're not, or this concern that if you're not very, very specific ex ante about when and how it can be used. It's just going to be invoked more and more often.
- [36:43]
Alan Rosenstein
So I want to close our discussion by looking at how to reform this problem. And so the first question I want to ask is whether this reform has to happen entirely at the state and local level, or whether this is something where the federal government can do something useful. I assume, and please correct me if I'm wrong, that the legal basis for whether it's glomar or executive privilege or anything else when it's done on the state and local levels is founded in state and local law. Right. It's an interpretation of the state Freedom of Information Act. It's an interpretation of the state constitution. I mean, I'm assuming that there's nothing like a federal judge could do to limit this. Am I wrong? And if I'm not wrong, is there something that Congress or the executive branch could do, or is there really not much that the federal government can do to help fix this problem at the state level?
- [37:36]
Christina Koningasor
Yeah. So you're definitely right that the question of whether the NYPD can use the glomar under New York's public records law is not something that federal judges can weigh in on. That's something that the state court judges have to decide. And so I am skeptical of kind of federal routes. I mean, there are some things the federal government could do. Right. They could reduce transferring their surveillance technologies to local police, but, you know, there aren't super strong incentives for them to do so. You know, they could maybe do something like condition receipt of federal funds on, you know, agreeing to abide by federal intelligence guidelines, something like that. But these are all, to the extent they exist. I think the sort of federal restraints are going to be kind of patchwork and not all that effective. I think it's really state and local government actors that need to step in and sort of address these on a state by state or even city by city basis. And so things that state legislatures could do would be, say, amend their public records laws to prohibit use of leglomar, or to say, if you're going to use the glomar, it's only under these sort of very specific sets of circumstances. Or if you're going to use it, we're going to have this separate procedure kind of kick in, and you need to get permission from an appeals board. You know, there's different ways that it could be structured, but there could be sort of acknowledgement written into the statutes themselves that certain tools shouldn't be used, or if they are going to be used, they should only be used in certain ways, you know, state legislatures, some have started enacting technology specific laws around, say, like use of drones. And so those types of laws could also address how information about those devices is protected or not protected and what can and should be made public. But honestly, I think the kind of biggest point of entry for these tools is really through state judges. So I think the most common pattern we see is a state or local actor will invoke this secrecy tool and then that will be challenged and will go to a state judge, and then the judge has to decide whether or not this is permissible under state law. And just all too often, state judges sort of defer to what the federal government is doing and especially, especially the federal judiciary. So this is actually something we see not just in the context of these specific secrecy tools, but we see federal judges, state judges looking to federal interpretations of FOIA to, to interpret their own state public record statutes all the time. And I, you know, I sort of question that broader practice because I do think there's a lot of reasons not to just kind of knee jerk adopt what the federal government is doing. But certainly when it comes to federal judicial opinions addressing national security secrecy, I think we should be very wary of state courts just kind of adopting those decisions. And so one example we saw is the federal judges have developed this sort of highly deferential standard for addressing affidavits from federal government actors sort of explaining national security harms that might be contained in public records disclosures. In Virginia, the state Department of Corrections said, you know what, we're also engaged in this really complicated problem of trying to ensure prison security. And so we should also get access to this very deferential standard that the federal judges have granted to federal national security agencies. And the Virginia Supreme Court said, yes, you're right. And then the state legislature actually overrode it and said they amended their public records laws to be really clear that no state agencies get this sort of deferential look in the same way that the national security agencies do. So we have seen these kind of intergovernmental checks working to kind of curtail some of these protections as well.
- [41:24]
Alan Rosenstein
Well, I think, unfortunately, we're going to have to leave it there. But, Christina, thank you very much for talking to us about this issue of Security Creep.
- [41:31]
Christina Koningasor
Yeah, thanks for having me. I really appreciate it.
- [41:38]
Alan Rosenstein
The Lawfare podcast is produced in cooperation with the Brookings Institution. If you like what you've heard, please take a moment to rate the podcast or let someone know so they can enjoy it as well. This podcast is produced by Jen Patty Howell. Hamza Shitu of Goat Rodeo is our audio engineer, and Sophia Yan performed our music. As always, thanks for listening.
- [42:26]
Caroline Cornett
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