SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 33
April 3, 2008

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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 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policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded.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."

REFORMING THE STATE SECRETS PRIVILEGE: TWO VIEWS

Attorney General Michael B. Mukasey this week expressed strong Bush Administration opposition to pending legislation that would regulate the use of the state secrets privilege in civil litigation.

The proposed "State Secrets Protection Act" (S.2533), the Attorney General wrote in a detailed seven-page letter, "would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine."

In short, "We strongly oppose this legislation."

See the Attorney General's March 31, 2008 letter to Sen. Patrick J. Leahy, chair of the Senate Judiciary Committee, here:

At the request of Senator Edward M. Kennedy, an original sponsor of the State Secrets Protection Act, Attorney General Mukasey's criticisms of the bill were reviewed and rebutted by Louis Fisher, the constitutional law expert at the Law Library of Congress.

"According to Attorney General Mukasey, Presidents are entitled to unilaterally define the scope of their powers under Article II and no other branch has any authority to impose limitations," Dr. Fisher wrote.

"The Constitution has been interpreted in that manner at times by some Presidents, but never successfully. Such a reading would eliminate the checks and balances that are fundamental to the U.S. Constitution."

See this April 2, 2008 memorandum prepared by Louis Fisher:

THE WAR POWERS RESOLUTION, AND MORE FROM CRS

Noteworthy new publications from the Congressional Research Service that have not been made readily available to the public include the following.

"The War Powers Resolution: After Thirty-Four Years," updated March 10, 2008:

"The Federal Grand Jury," updated January 22, 2008:

"Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power," updated February 1, 2008:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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