[Intelforum] Secrecy News -- 04/17/09

Fri Apr 17 11:22:56 EDT 2009

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 35
April 17, 2009

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

Support Secrecy News
http://www.fas.org/sgp/donate.html

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 35
April 17, 2009

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

Support Secrecy News
http://www.fas.org/sgp/donate.html

**	OLC TORTURE MEMOS DECLASSIFIED
**	THE RON RIDENHOUR PRIZES
**	NATIONAL INTELLIGENCE COUNCIL, AND MORE FROM CRS

OLC TORTURE MEMOS DECLASSIFIED

The disclosure of four Bush-era Office of Legal Counsel opinions on
interrogation and torture is likely to have significant political and
perhaps legal consequences.  But their release is also a landmark in
national security classification policy.

	http://www.fas.org/irp/agency/doj/olc/index.html

These OLC memos, released by the Justice Department yesterday, were among
the most urgently sought and the most fiercely protected classified
records of recent years.  They addressed fundamental questions of national
policy and yet they were off limits to public review and discussion by
virtue of their classification status.  

"The interrogation techniques described in these memos have already been
widely reported," President Obama said in a statement explaining his
decision to declassify the memos.  "Withholding these memos would only
serve to deny facts that have been in the public domain for some time."

	http://www.fas.org/sgp/news/2009/04/wh041609.html

But remarkably, this sensible view -- that information which has reached
the public domain should not remain classified -- does not characterize or
dictate classification policy.

"Classified information shall not be declassified automatically as a
result of any unauthorized disclosure of identical or similar
information," according to Executive Order 12958, as amended.

Nor can judicial review reliably compel disclosure of such information. 
In order to win declassification and disclosure of previously released
information, a FOIA plaintiff must show that each of the following
conditions is met: 1) the information previously released is as specific
as the information that is being requested; 2) the information requested
matches the information previously released; and 3) the information
requested has been made public through an official and documented
disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).

The new release does not alter this non-disclosure policy, which lends
credence to the statement of former CIA director Michael Hayden that the
government could have successfully argued against disclosure of the OLC
memos in court, as he favored.

But the four newly declassified memos are now themselves "an official and
documented disclosure."  This means that not only have their combined 124
pages been published (with limited redactions) but also that an obstacle
to the release of a related body of legal and intelligence information has
now been removed.  Such material can no longer legitimately remain
classified.  Furthermore, the new release will also enable participants
and other officials to speak publicly about the issues involved.

The memos are shocking in their calculated brutality and in their likely
violation of categorical legal prohibitions against torture.  They are, as
President Obama stated, evidence of a "dark and painful chapter in our
history" involving practices that should "never take place again."  But
they also provide abundant food for thought as well as new insight into
their authors' thinking, and their predicament.

The authorization for coercive interrogation of al Qaeda operative Abu
Zubaydah was predicated on the "certain" belief that "he is withholding
information regarding terrorist networks in the United States... and
information regarding plans to conduct attacks within the United States"
and that "he refuses to divulge" the information.  Furthermore, there was
an estimated threat level "equal to that which preceded the September 11
attacks."  "This opinion is limited to these facts.  If these facts were
to change, this advice would not necessarily apply."  ("Interrogation of
al Qaeda Operative," August 1, 2002, at page 1).

In other words, it appears that the OLC authors proceeded not out of
sadism or indifference, but out of desperation.

They recognized that under other circumstances (such as law enforcement),
the coercive practices that they were authorizing could be thought to
"shock the conscience."  But they concluded that coercive interrogation by
the CIA did not violate that standard since it was only being used where
the detainee had "knowledge of imminent terrorist threats against the USA"
and that it had already proved effective in producing "critical, actionable
intelligence." ("Application of U.S. Obligations Under Article 16," May 30,
2005, at pp. 3, 29ff).

The development of the OLC memos suggests that if torture is to be
permanently abolished, alternatives to coercive interrogation that are at
least as effective need to be identified, or else the occasional prospect
of an "imminent terrorist threat" threatening thousands of lives must be
accepted in principle as preferable to the extreme violations of human
dignity authorized by OLC.

A couple of other points.  Both President Obama and Attorney General
Holder noted that the OLC memos were released as a consequence of  ongoing
litigation.  In other words, their release is thanks to the Freedom of
Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the
resonance that the lawsuit found in the press, the blogosphere and the
public.  Congressional oversight did not get the job done (despite a
Senate Judiciary Committee subpoena for these records).  This reflects a
significant and dangerous weakness on the part of Congress.

Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA
interrogation program "began life as a covert action."  If that is true,
it means that there should be a Presidential "finding" authorizing the
program, and that such a finding should have been provided to
Congressional overseers.  As a covert action, the program may also have
entailed active deception.  It's one more loose end that remains to be
tied.

Michael Hayden and former Attorney General Michael Mukasey criticized the
release of the OLC memos in "The President Ties His Own Hands on Terror,"
Wall Street Journal, April 17:

	http://online.wsj.com/article/SB123993446103128041.html

The ACLU called for appointment of an independent prosecutor to
investigate torture under the Bush Administration, in an April 16
release:

       http://www.aclu.org/safefree/torture/39393prs20090416.html

THE RON RIDENHOUR PRIZES

Former Justice Department attorney Thomas Tamm, who was one of the early
sources for the December 2005 New York Times story on warrantless
government surveillance and who is under threat of prosecution for having
revealed classified information without authorization, yesterday received
the Ridenhour Prize for Truth-Telling.

   http://www.salon.com/opinion/conason/2009/04/17/whistleblower/

The Ridenhour Prizes, named for the late Ron Ridenhour who exposed the
1968 My Lai massacre, are intended to "foster the spirit of courage and
truth," particularly when doing so involves defiance of official authority
at some personal cost.

Other Ridenhour Prizes, presented at a ceremony yesterday, were given to
New Yorker writer Jane Mayer, New York Times columnist Bob Herbert, and
reporter Nick Turse.

	http://www.ridenhour.org/

NATIONAL INTELLIGENCE COUNCIL, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service, obtained
by Secrecy News, include the following.

"The National Intelligence Council: Issues and Options for Congress,"
April 10, 2009:

	http://www.fas.org/sgp/crs/intel/R40505.pdf

"Pakistan’s Capital Crisis: Implications for U.S. Policy," updated March
6, 2009:

	http://www.fas.org/sgp/crs/row/RS22983.pdf

"Direct Overt U.S. Aid and Military Reimbursements to Pakistan,
FY2002-FY2009," updated April 15, 2009:

	http://www.fas.org/sgp/crs/row/pakaid.pdf

"China-U.S. Relations: Current Issues and Implications for U.S. Policy,"
April 2, 2009:

	http://www.fas.org/sgp/crs/row/R40457.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691