Nuclear Weapons

The OLC Torture Memo as a Failure of the Classification System

04.03.08 | 2 min read | Text by Steven Aftergood

The Justice Department Office of Legal Counsel memo on interrogation of enemy combatants that was declassified this week “exemplifies the political abuse of classification authority,” Secrecy News suggested yesterday.

J. William Leonard, the nation’s top classification oversight official from 2002-2007, concurred.

“The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.

“The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”

Beyond that crucial fact, the binding technical requirements of classification were ignored.

Thus, he explained: There were no portion markings, identifying which paragraphs were classified at what level. The original classifier was not identified on the cover page by name or position. The duration of classification was not given. A concise basis for classification was not specified. Yet all of these are explicitly required by the President’s executive order on classification.

“It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.

“All too often, government officials simply assert classification. To enjoy the legal safeguards of the classification system, you need to do more than that. Those basic, elemental steps were not followed in this instance.”

“Also, for the Department of Defense to declassify a Department of Justice document,” as in this case, “is highly irregular,” Mr. Leonard said.

(The DoD declassifier mistakenly cited “Executive Order 1958” on the cover page of the declassified memorandum. The correct citation is “Executive Order 12958, as amended.”)

Violations of classification policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded. Nevertheless, such classification violations are significant because they enabled the Administration to pursue its interrogation policies without independent scrutiny or accountability.

“To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ‘secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard.

“There is no information contained in this document which gives an advantage to the enemy,” he said. “The only possible rationale for making it secret was to keep it from the American people.”

publications
See all publications
Nuclear Weapons
Report
Nuclear Notebook: Russian Nuclear Weapons, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons, and has been published in the Bulletin of the Atomic Scientists since 1987.. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

05.08.23 | 1 min read
read more
Nuclear Weapons
Blog
Video Indicates that Lida Air Base Might Get Russian “Nuclear Sharing” Mission in Belarus

On 14 April 2023, the Belarusian Ministry of Defence released a short video of a Su-25 pilot explaining his new role in delivering “special [nuclear] munitions” following his training in Russia. The features seen in the video, as well as several other open-source clues, suggest that Lida Air Base––located only 40 kilometers from the Lithuanian border and the […]

04.19.23 | 7 min read
read more
Nuclear Weapons
Blog
Was There a U.S. Nuclear Weapons Accident At a Dutch Air Base? [no, it was training, see update below]

A photo in a Los Alamos National Laboratory (LANL) student briefing from 2022 shows four people inspecting what appears to be a damaged B61 nuclear bomb.

04.03.23 | 7 min read
read more
Nuclear Weapons
Blog
STRATCOM Says China Has More ICBM Launchers Than The United States – We Have Questions

In early-February 2023, the Wall Street Journal reported that U.S. Strategic Command (STRATCOM) had informed Congress that China now has more launchers for Intercontinental Ballistic Missiles (ICBMs) than the United States. The report is the latest in a serious of revelations over the past four years about China’s growing nuclear weapons arsenal and the deepening […]

02.10.23 | 6 min read
read more