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.”


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

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Emptywheel Twitterverse
emptywheel This is great: The Human Impulse to Live Beyond the Law https://t.co/6IUs8BTfu6
emptywheel Your government really spent 11 years trying to hide "s"es showing it asks for phone numbers, plural, using NSLs. https://t.co/NbhB4myYna
emptywheel Among other things, Govt redacted passage pointing out even "dim-witted" terrorist could figure out redactions. https://t.co/NbhB4myYna
emptywheel FBI Redacted Passages Showing Judge Mocking Its Stupid Claims https://t.co/NbhB4myYna Where is EO does it permit hiding mockery?
bmaz @_JGR If and when you do, please advise. Generally they are supposed to bet rather quickly (within 10 court days is std here).
bmaz Not positive I completely agree w/the suggestion (I think QI ought be severely restricted, but this is fascinating https://t.co/APziDlwUBv
bmaz @_JGR By the way, has the local media reported what day the preliminary hearing is set for? Those are supposed to be set quickly.
bmaz @_JGR Now, I am NOT saying I think that should work here, but with a cop, I think you have a spitting chance with a good expert.
bmaz @_JGR That it was reflexive under the heat+stress of the moment, and therefore not premeditated. Trustme, there are "cop experts" for this.
emptywheel @richietynan https://t.co/wBU7tgEQd1 He's not REALLY a teenager, just claiming to be.
emptywheel @richietynan The panel needs to know a hacker claiming to be a teenager just got into FBI's counterpart of that system.
emptywheel Don't tell the terrorists the FBI knows some people have separate work phone numbers or they'll win!