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
** REFORMING THE STATE SECRETS PRIVILEGE: TWO VIEWS
** THE WAR POWERS RESOLUTION, AND MORE FROM CRS
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ultimately rescinded.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:
http://www.fas.org/sgp/jud/statesec/ag033108.pdfAt 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:
http://www.fas.org/sgp/jud/statesec/fisher040208.pdfTHE 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:
http://www.fas.org/sgp/crs/natsec/RL32267.pdf"The Federal Grand Jury," updated January 22, 2008:
http://www.fas.org/sgp/crs/misc/95-1135.pdf"Federalism, State Sovereignty and the Constitution: Basis and Limits
of Congressional Power," updated February 1, 2008:
http://www.fas.org/sgp/crs/misc/RL30315.pdf_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.