The disclosure of four Bush-era Office of Legal Counsel opinions on interrogation and torture is likely to have significant political and perhaps legal consequences. But their release is also a landmark in national security classification policy.
These OLC memos, released by the Justice Department yesterday, were among the most urgently sought and the most fiercely protected classified records of recent years. They addressed fundamental questions of national policy and yet they were off limits to public review and discussion by virtue of their classification status.
“The interrogation techniques described in these memos have already been widely reported,” President Obama said in a statement explaining his decision to declassify the memos. “Withholding these memos would only serve to deny facts that have been in the public domain for some time.”
But remarkably, this sensible view — that information which has reached the public domain should not remain classified — does not characterize or dictate classification policy.
“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,” according to Executive Order 12958, as amended.
Nor can judicial review reliably compel disclosure of such information. In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).
The new release does not alter this non-disclosure policy, which lends credence to the statement of former CIA director Michael Hayden that the government could have successfully argued against disclosure of the OLC memos in court, as he favored.
But the four newly declassified memos are now themselves “an official and documented disclosure.” This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed. Such material can no longer legitimately remain classified. Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.
The memos are shocking in their calculated brutality and in their likely violation of categorical legal prohibitions against torture. They are, as President Obama stated, evidence of a “dark and painful chapter in our history” involving practices that should “never take place again.” But they also provide abundant food for thought as well as new insight into their authors’ thinking, and their predicament.
The authorization for coercive interrogation of al Qaeda operative Abu Zubaydah was predicated on the “certain” belief that “he is withholding information regarding terrorist networks in the United States… and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information. Furthermore, there was an estimated threat level “equal to that which preceded the September 11 attacks.” “This opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.” (“Interrogation of al Qaeda Operative” [pdf], August 1, 2002, at page 1).
In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.
They recognized that under other circumstances (such as law enforcement), the coercive practices that they were authorizing could be thought to “shock the conscience.” But they concluded that coercive interrogation by the CIA did not violate that standard since it was only being used where the detainee had “knowledge of imminent terrorist threats against the USA” and that it had already proved effective in producing “critical, actionable intelligence.” (“Application of U.S. Obligations Under Article 16” [pdf], May 30, 2005, at pp. 3, 29ff).
The development of the OLC memos suggests that if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an “imminent terrorist threat” threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.
A couple of other points. Both President Obama and Attorney General Holder noted that the OLC memos were released as a consequence of ongoing litigation. In other words, their release is thanks to the Freedom of Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the resonance that the lawsuit found in the press, the blogosphere and the public. Congressional oversight did not get the job done (despite a Senate Judiciary Committee subpoena for these records). This reflects a significant and dangerous weakness on the part of Congress.
Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA interrogation program “began life as a covert action.” If that is true, it means that there should be a Presidential “finding” authorizing the program, and that such a finding should have been provided to Congressional overseers. As a covert action, the program may also have entailed active deception. It’s one more loose end that remains to be tied.
Michael Hayden and former Attorney General Michael Mukasey criticized the release of the OLC memos in “The President Ties His Own Hands on Terror,” Wall Street Journal, April 17.
The ACLU called for appointment of an independent prosecutor to investigate torture under the Bush Administration, in an April 16 release.
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