President Obama's May decision to declassify Bush-era legal memos does not require the government to give up more information on techniques revealed by those opinions, a judge ruled last week. The finding complicates efforts by civil liberties groups to obtain information about torture through Freedom of Information Act requests, and it could mean that some detainees who bring civil suits alleging they were tortured by the hands of U.S. interrogators may have a tougher time proving as much in court.
Citing precedent that gives the executive branch significant leeway in determining whether information ought to be classified, Judge Royce Lambert, ruling for the CIA and the Defense Department and against the ACLU, endorsed the so-called "mosaic" theory of intelligence collection, where individual pieces of evidence or information might be unclassified and not significant in and of themselves, but when they're combined together, jigsaw-puzzle-like, they could constitute a secret that the government deems worthy of protecting. The ACLU sought unredacted transcripts from Combat Status Review Tribunals.
Significantly, Lambert defers to the executive branch's determination that the information was not originally classified primarily to "conceal violations of law" or prevent embarassment to the government.
"This Court is in no position to second-guess defendants' determination that disclosure of detainees' statements would result in damage to national security," he wrote.
In other words: the entity that makes the determination about whether the executive branch improperly classified information is the executive branch. If that sounds circular, it is. It's the same reason why Courts tend to give the government leeway on the state secrets privilege. At some point during the next few years, the Supreme Court will probably decide whether this "fact
deference" is constitutional today.
Lambert also ruled that the International Committee of the Red Cross report on torture "did not constitute an official disclosure" by the government and therefore has no bearing on whether the government has to disclose -- or certify, or acknowledge -- the information that the report revealed.
When the Justice Department released the much-unredacted legal memorandums from its Office of Legal Counsel during the Bush era, critics -- and supporters -- wondered whether the precedent set by the administration would compel the release of more documents in ongoing national security cases.
Defendants (and plaintiffs) in several cases seized on the OLC memoranda to argue that the government's release of the declassified information and a later release of a CIA inspector general report on interrogation policy meant that the government had placed the information they wanted in the public domain. The American Civil Liberties Union hoped that several freedom of information act requests would be granted.
"The court's ruling allows the government to continue suppressing these first-hand accounts of torture - not to protect any legitimate national security interest, but to protect current and former government officials from accountability," said Ben Wizner, an ACLU spokesman, in a statement.
The ACLU plans to appeal.
Marc Ambinder is a senior fellow at the USC Annenberg Center on Communication Leadership and Policy.