The OLC Torture Memo as a Failure of the Classification System
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policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded.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.”
At a recent workshop, we explored the nature of trust in specific government functions, the risk and implications of breaking trust in those systems, and how we’d known we were getting close to specific trust breaking points.
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The grant comes from the Carnegie Corporation of New York (CCNY) to investigate, alongside The British American Security Information Council (BASIC), the associated impact on nuclear stability.