DOJ Fights to Keep Info Secret in Torture Memo Report

Responding to a lawsuit over a U.S. Justice Department report on the lawyers who wrote the so-called torture memos, the government said this week that blacked-out passages in the report should remain confidential in the interest of national security and the privacy of government lawyers.

In January, the American Civil Liberties Union sued the Justice Department in federal district court in Washington to obtain a copy of the report, which was prepared by the department’s Office of Professional Responsibility. The House Judiciary Committee released a redacted copy on Feb. 19—a few days before the department’s deadline to respond to the ACLU suit.

The report examines possible professional misconduct by lawyers in the department’s Office of Legal Counsel who during the Bush administration, provided advice on the legality of enhanced interrogation techniques that CIA officers used on suspected terrorists. The report cleared Justice attorneys John Yoo and Jay Bybee of any ethical wrongdoing.

The ACLU did not drop the suit after the House’s publication. ACLU lawyers want the government to make public more information from the report. Among other things, they want names of Justice personnel, their legal analysis and communications among government lawyers.

The Justice Department filed hundreds of pages June 30 in the U.S. District Court for the District of Columbia asking that a trial judge grant summary judgment in favor of the government.

Associate Deputy Attorney General David Margolis said in a declaration this week that the report shields the names of lower-level department employees who were not decision-makers. The report, Margolis wrote, “did not conclude that any of those lower-level employees committed professional or other misconduct in connection with their role in that work.”

Margolis said that “disclosure might subject these individuals to embarrassment or harassment because of their role, however small or ministerial, in a matter that has received significant media attention.” He said there is “little or no public interest” in disclosing their names.

Jacqueline Coleman Snead of the Justice Department’s Federal Programs Branch said in court papers the department didn’t redact information from the report with “broad strokes.”

Jan Payne, a CIA information review officer for detainee-related matters, said in a declaration that disclosure of classified information in the report “would make future counterterrorism efforts less effective and would cause exceptionally grave damage to the national security.”

Payne said the presidential communication privilege is being asserted to keep secret “eight short passages” about senior presidential advisors and officials from the CIA and the Justice Department. Certain passages describe meetings among these officials, and the passages “reflect opinions voiced by or questions posed by these same senior presidential advisors.”

“The presidential advisors involved in these communications would have reasonably expected their discussions and deliberations regarding sensitive national security matters to remain confidential,” Payne wrote.

Comments

[Cynthia Papermaster]

Thus John Yoo's involvement will be kept hidden, helping his argument for immunity in the Padilla v. Yoo case in the 9th Circuit. Yoo is appealing the district court ruling allowing Padilla's lawsuit against Yoo for torture. The question of the extent of his role in setting policy in the torture program came up in the 9th Circuit hearing, with his lawyer arguing that he was merely a mid-level OLC lawyer and Judge Fisher insisting that Yoo himself says in his book that, as a member of the "War Council" he played an active role in policy making. It could make a critical difference in the outcome of this case to know what the redacted information contains. I'm hoping that the ACLU will prevail.

[Joseph Marchelewski]

It sounds like everything that someone is trying to hide is becoming a matter of national security.