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.

Tweet about this on Twitter15Share on Reddit0Share on Facebook2Google+0Email to someone

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

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9

Emptywheel Twitterverse
JimWhiteGNV RT @APDiploWriter: KABUL, Afghanistan (AP) - #Afghanistan, #US sign security pact allowing US forces to remain in country past end of year.
50mreplyretweetfavorite
bmaz RT @JackofKent: Today the Tories will deride the Human Rights Act, which you can enforce in court, and praise Magna Carta, which you cannot.
4hreplyretweetfavorite
bmaz @MonaHol @emptywheel It absolutely is worth it. More people should understand what's being done. It is just sad this is "news" cause its not
5hreplyretweetfavorite
emptywheel @MonaHol I believe it can be shown to be either non-compliant or partial, but haven't looked closely yet. @bmaz
5hreplyretweetfavorite
emptywheel @MonaHol What is actual news abt ACLU release is govt has now committed to what their 12333 compliance is. @bmaz
5hreplyretweetfavorite
emptywheel @MonaHol Glad docs are out so other people stop getting snookered by sources. But that was easily avoidable. @bmaz
5hreplyretweetfavorite
emptywheel @MonaHol It was also laid out in FISCR opinion declassed in 2009. Big part of 2007 debate on FAA. And so on and so on @bmaz
5hreplyretweetfavorite
emptywheel @MonaHol For those who haven't read 2009 docs this might be surprising. But far more substantive details already in record. @bmaz
5hreplyretweetfavorite
emptywheel @MonaHol Not in the least surprising. Many of my 50+ posts on all this lay that out. Clarke testified to same. @bmaz
5hreplyretweetfavorite
emptywheel @pwnallthethings First shot at Awlaki may have been parts of DOD going rogue, but generally agree. @normative @BradMossEsq
5hreplyretweetfavorite
emptywheel @pwnallthethings That said, on both torture and Awlaki killing, case is strong POTUS did not comply w/Findings reqt @normative @BradMossEsq
5hreplyretweetfavorite
emptywheel @pwnallthethings Actually think Findings like system is minimal change that should have come fr Snowden's leaks. @normative @BradMossEsq
5hreplyretweetfavorite