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.

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

Emptywheel Twitterverse
bmaz @CultofNewMedia @JasonLeopold @laRosalind Yeah, this guy is Rambo. It's either going to work or completely self destruct. Not sure which.
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bmaz @djsziff @ddayen The Govt buggered it though. And climate changed as to jury pools. Is bullshit if Govt thought that precluded other cases.
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bmaz RT @GreggJLevine: A Cruz aid complained general is now a race btwn 2 liberal Dems; easier to say it's btwn 2 Rockefeller Republicans https:…
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bmaz RT @ddayen: Also this is just untrue & Eric Holder is the world's worst character witness https://t.co/H6yLrlpGLr https://t.co/zkNgHgLSdt
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bmaz If the 2nd Circuit catches wind of this, Tom Brady can kiss his appeal goodbye https://t.co/DuwZ2R4MDT
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bmaz RT @saramayeux: but, as this article shows so graphically, in prisons w/worst abuses, grievance process is chimera. threats of retaliation…
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bmaz RT @saramayeux: PLRA says, judges have to toss out lawsuit if prisoner did not first exhaust all administrative grievance procedures w/in t…
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bmaz RT @saramayeux: finally read @EyalPress's horrifying account of how Florida prisoners are tortured, largely with impunity: https://t.co/6Dk
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bmaz @adamgoldmanwp @DanLamothe It's funny, I've not seen a single report mention his mother Krista, who was so central to C-4 when was younger.
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bmaz @StephStradley Can't argue with some of us, because we've been in agreement from the get go!
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bmaz @TimothyS Yup.
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