2nd Circuit: President Can Declare Proof that President Authorized Torture Secret

As I showed in a series of posts several weeks ago, the Obama Administration appealed Judge Alvin Hellerstein’s order to release a reference to–or at least a summary of it–the President’s September 17, 2001 “Gloves Come Off” Memorandum of Notification the government used to authorize the torture program and a whole slew of other things. (post 1, post 2, post 3, post 4, post 5, post 6, post 7, post 8) The 2nd Circuit just sided with the government, finding that the MON constituted an intelligence activity that could be classified under EO 12,958.

The Government contends that the information redacted from the OLC memoranda may be withheld from disclosure under either FOIA Exemption 1 or 3. In our view, Exemption 1 resolves the matter easily.4 Exemption 1 permits the Government to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if that information has been “properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The Government contends that the redacted information was properly classified under Executive Order No. 12,958, as amended, which authorized the classification of information concerning “intelligence activities (including special activities), intelligence sources or methods, or cryptology.”

[snip]

Based on our ex parte and in camera review of the unredacted OLC memoranda and the Government’s classified declarations, we agree with the Government that the redacted information was properly classified because it pertains to an intelligence activity.

Of particular note, the Circuit held that letting Americans know who and how the torture program was authorized would reveal the existence and scope of a still-ongoing program.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

Though it did suggest that the parts of the program put at jeopardy would be the other activities authorized by the MON–things like targeted killings and use of SWIFT and the “purchasing” of some Middle East intelligence services.

It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

Note, though: this passage is as close as the opinion comes to addressing my point–that the government already acknowledged the existence of the MON in its Vaughn Index in this case (not to mention via John Rizzo’s blabbing about it). Which is to say the court didn’t acknowledge it at all.

The CIA has already revealed the existence of this MON. The only thing that keeping it secret does is shield President Bush for all the torture committed in his name.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. earlofhuntingdon says:

    Is there no presidential or presidentially authorized behavior, no matter how criminal, that US courts will not now protect by declaring its existence off limits to judicial review? Never mind.

  2. bsbafflesbrains says:

    @earlofhuntingdon: I remember studying Fascism in College and now it is interesting in a moribund sense to watch how it is institutionalized. I fear for the future because look at the creeps we are electing to the Presidency these days.

  3. earlofhuntingdon says:

    Fascism is a convergence of corporate and governmental interests and power; we certainly have that. Any doubters need only look at how well Wall Street has weathered a typhoon of its own devising, at how well drugs companies and insurers will do under Mr. Obama’s health “reforms”, at how well telecoms have avoided liability for once illegal behavior, at the thousands of companies now dependent on the War Department’s largesse, and at how the War Dept. is dependent on them in order to wage war.

    This involves federal courts offering widespread protection to the executive by making inquiry into its actions impossible. They are closing the courthouse doors on the public that authorized and pays for them, and which relies on them as a constitutional venue for confronting errant executive action.

    That’s not a necessary or inevitable outcome; British and even Canadian courts have shown a willingness to hold their own governments accountable to the rule of law that here has become as quaint as an MG roadster or Ford Falcon. It is the American outcome.

  4. earlofhuntingdon says:

    “’The role of the intellectual is to ask questions, to disturb people, to stir up reflection, to provoke controversy and thought.… The role of the intellectual is never to justify power, to always be critical of power, whether it is the power of the weak or the power of the strong … the role of the intellectual is to challenge power by providing alternative models and, also as important, resources of hope.’ I would only add that the role of an intellectual is to be prepared to tackle any text.”

    That excerpt from John R. MacArthur’s address to Columbia College graduating students, quoting Edward Said, applies equally to good journalism. (The text is from the current harpers.org.) It describes what Mr. Obama, a former student of Said, does not do; in fact, he seems vehemently against it. It describes what most of today’s major journalism outlets do not do, though they often claim the opposite. It does describe much of what Marcy does (and former colleagues at FDL, such as David Dayen, do). But it was the last sentence, about being willing to tackle any text, that most made me think of EW, our Izzy. Thanks.

  5. Peterr says:

    From the 2nd Circuit ruling, p. 14, with emphasis added, comes this description of when summary judgement for the government is warranted:

    Summary judgment is appropriate where the agency affidavits “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

    It seems to me that there is plenty of evidence of bad faith on the part of OLC and the DOJ to go around.

  6. lysias says:

    If you look at Ulrich Herbert’s biography of Gestapo legal theorist Werner Best Best: Biographische Studien über Radikalismus, Weltanschauung und Vernunft 1903-1989 [Best; Biographical Studies on Radicalism, Philosophy of Life, and Reason, 1903-1989], our post-9/11 national security state has achieved the legal status that Best successfully argued for the Gestapo: matters that affect national security should be outside the jurisdiction of the courts.

  7. Bill Michtom says:

    I have been describing Marcy to people for years as a modern-day I.F. Stone.

    Well said, earlofhuntingdon!

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