Ex-Official On Declassification Blasts U.S. Secrecy Policies

Wed. Apr. 30, 2008


The recent declassification of a five-year-old Justice Department memo that justified the use of torture in interrogations represents one of "the worst legal abuses" of the Bush administration because the document was "pure legal analysis [and] its contents give no advantage to the enemy," according to an official who until recently oversaw the executive branch's national security information classification system. The official, J. William Leonard, who retired last year, told the Senate Judiciary Constitution Subcommittee today that classification of the 81-page document written by the then-deputy of Justice's office of legal counsel, John Yoo, was "profoundly disappointing" and "wrong on many levels." The scenario is "a prime example of how classification is used as a bureaucratic weapon to block potential opposition," he said.

The hearing, chaired by Sen. Russell Feingold, D-Wis., discussed how the administration has withheld from Congress and the public information on legal interpretations that govern its conduct. The debate came on the heels of House Judiciary Chairman John Conyers' request to Attorney General Mukasey for a list of secret legal opinions issued since 2001 as well as copies of unclassified rulings. On the eve of Feingold's hearing, Justice and the Office of the Director of National Intelligence said that they would give the Senate Intelligence Committee limited access to memorandums relating to the CIA's interrogation program and that certain portions of those would be made available to the Judiciary Committee. "Some access is better than no access, but that's about the best thing I can say," Feingold said.

John Elwood, deputy assistant attorney general for the Office of Legal Counsel, said his office would provide unredacted copies of all the memos to members of the Intelligence Committee, some of whom have already been briefed on the legal basis for those policies. He said he was unsure about the scope of information that would be turned over to the Judiciary Committee because "discussions are still ongoing."

The head of the Office of Legal Counsel in the Clinton administration, Dawn Johnson, speaking of the Bush administration, testified that "on many occasions, OLC has wrongly advised the executive branch" and kept "profoundly flawed legal interpretations secret" in areas such as interrogation, detention practices and warrantless wiretapping. That forces Congress "to legislate in the dark" and constitutes "a terrible abuse of power," said Johnson.

But Bradford Berenson, who formerly served as Bush's associate legal counsel, said it is appropriate to keep certain executive branch decisions secret because they either threaten harm to national security or involve confidential advice provided to the president. But he agreed that "some of these memos should not have been classified." David Rivkin, an adviser to the Reagan and first Bush administrations, defended the current administration's overarching legal framework. Relying on anything other than the "laws of war" paradigm in the fight against al-Qaida would place Americans at greater risk to terrorist threat, he said. Judiciary Constitution Subcommittee ranking member Sam Brownback, R-Kan., said he was "not convinced" that the topics discussed at the hearing comported with the notion of "secret law" as defined by the U.S. court system. An examination of those actions must be tempered by other considerations like national security, he said.

by Andrew Noyes

Wed. Apr. 30, 2008