Judge: Government Can Shield Its Conversations about Engaging in Torture

Josh Gerstein reports that a Federal Judge has rejected ACLU’s effort to get the government to remove more of the redactions in the OPR Report on the torture memos. Judge Rosemary Collyer basically argued that the President’s need to get candid advice on how to make torture legal trumps citizens’ right to know about such illegal activity.

Rather than arguing that exemptions (b)(1) and (3) are inapplicable under the Executive Order or the proffered statutes, Plaintiffs argue that the substance of the redactions: (1) the names of the detainees; and (2) the “actual and potential implementation” of “enhanced interrogation techniques,” including “conditions of confinement” that functioned as part of the “enhanced interrogation techniques,” are unlawful, and therefore fall outside the protection of “intelligence sources and methods” granted by those exemptions. Pls.’ Mem. at 11–24. But, as recently stated by the D.C. Circuit, the illegality of information is immaterial to the classification of such information under exemptions (b)(1) and (3) as intelligent sources or methods.


While the Court recognizes the public’s interest, this interest does not overcome the need for frank discussions on serious issues that confront a President. Without a free and candid dialectic, the President cannot be properly armed with the tools required to make difficult decisions on consequential issues. Because the declaration sufficiently details its rationale for redaction, and because the public’s interest does not overcome the privilege in this case, the Court finds that Defendant has satisfied its burden as to the limited redactions withheld pursuant to the presidential communications privilege.

Mind you, the Judge is reading broadly here. For at least one of the meetings, we have evidence a decision was made without the input of the President. Yet she has interpreted meetings of Administration officials where Bush was absent as Presidential communications.

So in reality, she’s not just shielding Bush’s decisions, she’s shielding Cheney’s and Alberto Gonzales’ decisions as well. Eh, I guess she thinks Cheney was really in charge?

Where Judge Collyer’s opinion gets really crazy is where she accepts the government’s argument that, having left its discussion about “mock burial” unredacted in one instance, it does not have to reveal the other instances.

Plaintiffs next argue that the name of the interrogation technique that the CIA considered using, i.e. “mock burial,” has already been unclassifed and thus should be disclosed. It is true that when the government has officially acknowledged information, a FOIA plaintiff may compel disclosure of that information even over an agency’s otherwise valid exemption claim. See Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765. For information to qualify as “officially acknowledged,” however, it must satisfy three criteria: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure. Id. After reviewing additional information in camera, the Court finds that the redacted information does not match the very broad information previously disclosed. Due to the specificity and context of the redacted information, coupled with the agency affidavit that affirmatively states that: “notwithstanding these prior disclosures (which I took into account when reviewing the Report), many details of the detention and interrogation program and the intelligence activities undertaken in support of it remain classified,” Payne Decl. ¶ 28, the Court is satisfied that this redacted information has not been already “officially acknowledged,” and thus is appropriately redacted pursuant to exemptions (b)(1) and (3) as “intelligent sources or methods.”

Maybe this is particularly sensitive because they actually did use mock burial and mock executions with detainees but didn’t prosecute? Or maybe the CIA just asked her, on the basis that they sometimes referred to mock execution and other times referred to mock burial and other times referred to death threats, these are different specifics?

It gets worse. If you want to ruin your appetite, click through and see how she justified sustaining the redactions of Jennifer Koester’s name.

  1. MadDog says:

    Plainly this Federal judge, as well as many others, believes that when smacked straight in the chops with the irrefutable evidence and admissions of criminal acts of torture by the US government, the fact that the US government has not “charged” itself removes those criminal acts from the judicial mind.

    Or shorter Judge Collyer: “If there are no charges, there are no crimes.”

    So much for the vaunted equality among branches of government.

    • PascoBill says:

      I’m sure you are aware that your quote gets invoked at all levels. My next door neighbor is violating a state law, but the city police doesn’t really understand the law, and won’t charge him, so the DA has no case to even discuss with me. “No charges, no crimes”. Now, where’s my vigilante arm band???

      • MadDog says:

        What bothers me most is the lemming-like behavior of judicial deference to precedent. Even if that precedent is absurd.

        Do any of these judges actually think for themselves?

        That Judge Collyer can quote this (pages 5-6 of the 22 page PDF) is appalling:

        “Summary judgment is warranted on the basis of agency affidavits when the 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.”

        (My Bold)

        Particularly when Judge Collyer also states this from page 9:

        …But, as recently stated by the D.C. Circuit, the illegality of information is immaterial to the classification of such information under exemptions (b)(1) and (3) as intelligent sources or methods…

        (My Bold)

        How can Judge Collyer, or any other judge, ignore the blindingly obvious “bad faith” of the US government’s own admission of its own “illegality”?

        Is there any US government criminal act that would entice Judge Collyer to see “bad faith”?

        Not that I can see.

        This is the state of our Republic. Where crimes committed by the US government are not crimes simply because the US government says so.

        • NMvoiceofreason says:

          Actually, this is a judge who is IGNORING binding precedent:”Founding Church of Scientology v. NSA, 610 F.2d 824, 830 n.49 (D.C. Cir. 1979)
          (emphasis added). The CIA has failed to establish how disclosure of its unlawful conduct would
          implicate legitimate intelligence operations. Indeed, the CIA cannot show this.”

          Circuit court will fix this, but it takes time.

      • NMvoiceofreason says:

        Let’s say you were speeding. A bright red corvette passes you doing 150, but the lazy cop decides to catch you instead. You are not charged with the 150, but only the 85 you were actually doing. Do you have a claim?

        Let’s say you killed your neighbor. Your next door neighbor kills five people, but doesn’t leave any DNA evidence like you did. Do you have a claim? Should they let you go because someone else did worse? Or should everyone be prosecuted as soon as they can prove it?

        • dboy says:

          ^^Law, logic, and reason are not applicable here because we are dealing with a government that is now rogue. When law only applies when you choose for it to apply, then you have a government capable of literally anything.

          The US government no longer answers to the “will of the people”. There is no longer any “representation” of the people. this implies many things.

  2. victoria2dc says:

    The ONE AND ONLY way we’re going to straighten out this country is to *fix* the American people’s self-image and to carry out a REVOLUTION Egyptian-style! There is no hope. I quit even reading about it because it’s disturbing my peace and the joy of life.

    I give up, but I read Emptywheel because sometimes I need to know the truth. Then I get sick and go back into seclusion and peace.

  3. Tina O says:

    Sorry, but isn’t that what legally happened in Neuremburg. Oh no, they shot them. But, I known, I know…I’m against capital punishment…spoken in freaking anger. I try to watch my temper so I don’t become them, but it’s hard. I think to myself, who here would light themself on fire to make humanities point, and really when laws already exsist why does it have to come to that?

  4. JohnUllmann says:

    Horton says Koester just about falsified precedent in order to justify torture for Addington:

    Why was Hardy’s [nee Koester] name redacted? She played an obvious and important role in the production of the documents. She made serious errors, which appear to be driven less by flaws in research than by a desire to produce an opinion that had the conclusions that David Addington wanted. The failure to identify key precedents and the malicious misconstruction of precedent is as much her fault as that of Bybee and Yoo. Hardy is also an ideological fellow traveler of Yoo’s and Bybee’s. In the midst of her work at the Justice Department, she took time off to serve as a clerk for Justice Clarence Thomas, with whom John Yoo also clerked. Moreover, while she was clerking for Thomas, he authored opinions relating to detentions policy matters on which Hardy was plainly engaged at the Justice Department. Like Bybee, Yoo and Thomas, Hardy is also active in the Federalist Society. Finally, her connection with the law firm of Kirkland & Ellis is important for several reasons. Mark Filip, who worked aggressively to derail or block the OPR report, and whose highly partisan engagement on the matter is disclosed in several of the documents disclosed on Friday, departed the Justice Department to become Ms. Hardy’s partner at Kirkland. It’s certainly possible that he was engaged in discussions with Kirkland in late January 2009, when he issued his opinion about the OPR report. The Kirkland firm has emerged as a distinctly Republican powerhouse, heavily populated with the party’s neoconservative wing, such as Jay Lefkowitz, Ken Starr, John Bolton, and Michael Garcia.

    So why would Hardy’s name be redacted? Disclosure of her name might get in the way of a future political appointment. It might also lead to a review by a local bar association of her involvement with the torture memos, something which Margolis is keen to obstruct.

  5. Tina O says:

    Ya know, capitol punishment doesn’t work as a deterrent for those already FORCED into criminality or the mentally ill…but I’d bet 10 to 1, the lilly whites…not so much.

  6. Mary says:

    OT – Clinton thinks that appointing Sibel Edmond’s favorite Bushie, Marc Grossman, to step into the Pakistan mess will make everything better.


    I like the part about a list of “diplomats” including Negroponte and Armitage have already been asked and have turned down the gig, as well as Podesta. That’s an interesting lineup of guys who got asked to the dance.

    And apparently no one thought it would be a good idea to go with Chas Freeman. ;)

    • bobschacht says:

      I agree that Armitage & Negroponte were appropriate nominations on grounds of experience and skill, but both are Republicans, aren’t they?
      Freeman might have been a brilliant choice– does the position require Senate confirmation?

      Bob in AZ

      • Mary says:

        way epu’d

        I think when it is a special envoy there is no approval required. How often do you have Podesta and Negroponte on the same dance card?

        @17 – it’s reassuring hearing that thought stated so definitely. @19 – I’d like to see someone make the argument, as well, that what they are talking about is extrajudicial Executive targeted “pains and penaties” – which aren’t *just* ultra vires, but which are constitutionally prohibited from being placed within the Executive’s scope.

        @23 – it does make some sense, if you think of things being done in a more normative, less *laced with evil* setting. A lot of classified information might involve illegal acts of say CIA agents breaking into a building in Pakistan and stealing information, or bribing a Saudi Arabian diplomat into delivering info, or getting an al-Qaeda guy who is doing a lot of illegal things to act as a mole and funnel info to them, etc. There are a lot of things I can think of where there is illegality involved that could/should still result in classified info – but that illegality involves breaking another nation’s laws but not our own OR the actor breaking the law that might be a US law (or US law or treaty obligation as well) being an arms lenghth informant who was not acting AS OUR PROXY WHILE BREAKING US LAWS AND TREATIES

        fwiw, jmo

  7. NMvoiceofreason says:

    “[W]here [an agency] function or activity is
    authorized by statute and not otherwise unlawful, [agency] materials integrally related to that
    function or activity fall within . . . Exemption 3.” Hayden, 608 F.2d at 1389

    Binding precedent. Ultra vires acts means no state actor = no state secrets protection.

    DC Circuit will fix this on appeal.

    • BoxTurtle says:

      You have more confidence in the DC circuit than I do. And the supremes will (IMO) ignore that precedent in favor of executive power.

      Boxturtle (Would very much like to be wrong)

  8. jackie says:

    If ‘Torture’ has already determined to be ‘Torture’ and therefore Illegal by written and signed Law, why would a President/’Government’ have to have ‘protection’ just so they can discuss secretly how to get around the Law? isn’t that Conspiracy?

    • eCAHNomics says:

      Jeffrey Sachs is a flaming asshole. He was one of the biggest neoliberal economists in the world when the Soviet Union fell apart and is significantly responsible for the economic collapse of Russia thereafter.

      His latter day conversion does not impress me at all.

      • FreddyMoraca says:

        eCAHN’s comment seconded!

        at best, sachs is now calling for charity to patch up the unfortunate victims of his preferred shock doctrines. this cosmetic makeover coincided with his hasty departure from harvard after a russian corruption scandal nearly got him (some context here.)

  9. lsls says:

    “But, as recently stated by the D.C. Circuit, the illegality of information is immaterial to the classification of such information under exemptions (b)(1) and (3) as intelligent sources or methods.”

    This makes no sense. It should be the illegality of the methods of obtaining information..and that is material to the whole shebang. What is wrong with these people. Does the judge wake up with horse heads at the end of the bed?

    • BoxTurtle says:

      I doubt there’s a money trail. But I’d be willing to be there were improper contacts between the Judge, the Executive, and the DoJ lawyers.

      Boxturtle (Wonders if she actually believes what she wrote)

      • eCAHNomics says:

        I linked to a list of clients in my next comment.

        I too doubt that there would be direct payments to her at this particular moment in her career. Improper contacts, I wouldn’t be a bit surprised. Cocktail weenies, dontcha know.

        I’m a rank amateur at trying to figure out how the judicial gets so corrupted, so excuse my clumsy characterization. But strong opinion that corruption it is.

        Anyone know is she’s married? If so, what does her husband do?

      • NMvoiceofreason says:

        No, she’s just a Reagan republican judge. She actually believes this stuff, and that it is good for the country.

  10. eCAHNomics says:

    Also, she was appointed by W. What promises did he extract?

    Her wiki is a stub. Doesn’t say if she’s married.

  11. Winski says:

    SO, basically this judge says, Chimpy and Darth are still in charge, so proceed with all due speed to break international law all you want…

    This place has turned into the biggest clown show I’ve ever witnessed!

  12. TheScarletPimpernel says:

    Now THERE is a classic case of reductio ad absurdum. It’s illegal, but who care? You still can’t know about it. And we all used to think that the denial of habeas corpus after the Civil War by Andrew Johnson was an outrage. Now, not only is habeas corpus denied, but event if the government is doing things illegally to the people denied habeas corpus, we still aren’t allowed to know about it. George Orwell was right and we are living it. As Pogo said, “We have met the enemy, and he is us.”

  13. bluewombat says:

    Without a free and candid dialectic, the President cannot be properly armed with the tools required to make difficult decisions

    I think the judge should have left Hegel out of this.

    • hektor6766 says:

      Socratic dialectic.

      Socrates: Is submerging a person’s face in water a form of torture?
      Protagoras: Of course.
      Socrates: But if that person enjoys a morning swim each day, and thus submerges their face in water during the course of that swim, is that torture?
      Protagoras: I should say not.
      Socrates: Then submerging that person’s face in water would not be torture, but an enjoyable past-time, would it not?
      Protagoras: Egad, Socrates, you have cut me to the quick!

      Protagoras, Bush Library edition, 2006

  14. mzchief says:

    OT– See the Barry Ritholtz interview during which he mentions the hedge fund servers co-located with those of the exchanges (that’s the cross-connected, parallel commercial-grade Tel-sat-co network) at time point 16:25. Investigators will want to look for equipment manufacturer– especially those HQ’d locally in Chicago– and some common carrier participation as consultants in the design, construction, test and turn-up in this US project and in the other exchanges around the globe (e.g. tier 1 cities as Moscow, Tokyo, London, New York, Beijing, Toronto ; note that the major work could have been already performed during the 2000s).

    Meanwhile, “Warren Buffett Liquidates Bank Of America Stake” (Feb. 14, 2011) and more on Sen. Chuck Schurmer’s elation that the NYSE is being taken over by German company, Deutsche Borse (Feb. 15, 2011).

  15. Mary says:

    If we get another Cir panel like Randolph, Brown and Kavenaugh it very well might survive (and thankfully Obama hasn’t put into place DOJ policies where he’s going to push for his torture rights and put a pro-Exec branch torture advocate like a Kagan on the S. Ct to sway those odds or … nevermind).

    • NMvoiceofreason says:

      Actually Tina O, the force of law is coming to bear more and more. The world court would have jurisdiction – if we could ever get the miscreants in front of it. The International Criminal Court would have jurisdiction, except Bush withdrew us from that treaty before it could be ratified. Canada has declared the US a nation that tortures. Italy and Germany have indicted CIA agents (they were convicted in Italy). Bush canoot travel to Switzerland – or much or anywhere else in Europe – because warrants for his arrest will be waiting.

      The force of law is still here in America, even though it is on its last breaths. Some of us are fighting to bring it back to full throated life.

      Someday soon, Bush, Rumsfeld, et. al. will no more be able to travel to Texas without being arrested than they will to Switzerland. The day is coming. The day is coming.

  16. Mary says:

    OT on Davis – but one way the US is trying to appease the situation (before Obama pours oil on it all by saying our principles are worth a lot more than a coupla dead pakistanis) is by saying they are going to have the US Dept of Justice investigate the Davis and SUV killings.


    If you look closely at the fine print, you’ll see this solution bears an Aasif Mandvi tagline. The Pakistanis got the joke, Kerry – notsomuch.

    “Our Department of Justice will conduct its own thorough criminal investigation regardless of the immunity. We still believe the immunity applies but that doesn’t mean we don’t have the right under our law or the capacity to go through our own process,” Kerry told a news conference shortly after he flew into Lahore.

    He said it is customary for the US government to conduct a criminal investigation into incidents like the Lahore shooting.

    “That’s our law. I can give you the full assurance of our government today that that will take place,” he added.

    Apparently he didn’t mention states secrets and how it’s ok according to judges like Collyer for our “diplomats” to engage in torture and killings and invoke states secrets to kill any investigation. Or that our Dept of Justice, when it comes to Exec branch directed criminal depravity, wrote the memos authorizing the activities.

  17. Tina O says:

    Okay, after having commented on last night’s topic honestly…can I get back on board here and say…Marcey…Where is the Pie Chart that shows the peoples where the money is really spent and what assholes say?

  18. powwow says:

    Remember Awal Gul?

    Glenn Greenwald, February 4, 2011 [writing for the first time since being hospitalized for, and while still recuperating from, Dengue (“breakbone”) fever]:

    In its 2008 Boumediene decision, the Supreme Court struck down the provision of the Military Commissions Act which denied habeas corpus review to all detainees, and ruled that Guantanamo detainees at least have the right to a one-time review by a federal court as to whether there is credible evidence to justify their detention (a far less rigorous standard than the one that applies if they’re charged with a crime and the state has to prove their guilt beyond a reasonable doubt). [Before he died at Guantanamo this week, Awal] Gul had filed a habeas petition and it was fully argued before a federal court back in March [2010] — 11 months ago. The federal judge [Rosemary M. Collyer] never got around to issuing a ruling.

    This happens quite frequently in our court system: judges simply fail to act within anything resembling a reasonable period of time. Gul was imprisoned for 8 years without a shred of due process (outside of internal Bush Pentagon “administrative reviews”) and finally had his Constitutional right to obtain habeas review affirmed by the Supreme Court in 2008. [Awal Gul’s] habeas petition was fully submitted and orally argued almost a full year ago, yet even in the face of his prolonged, due-process-free imprisonment, [Rosemary M. Collyer,] the federal judge presiding over the case just never bothered to rule on his claims. There’s a well-known legal maxim that “justice delayed is justice denied,” but this goes well beyond merely violating that. Taking almost a full year — at least — to decide a habeas petition for someone who is languishing in indefinite detention for their ninth year is simply inexcusable.