What is no longer classified? (and what does it portend for the credibility of government declarations insisting on the need for categorical secrecy of covert action programs?)

The prosecution’s motion to amend the protective order in the 9/11 military commission is finally posted.  As I discussed here, Judge Spath has granted a similar motion in the al-Nashiri case.  Judge Pohl has yet to rule on this motion in the 9/11 case because the defense apparently intends to file at least one response to it.

In an earlier post I explained why I think this development is very welcome and overdue.

There’s another very noteworthy thing about the prosecution’s motion, as well:  It enumerates those categories of information about the CIA’s rendition/detention/interrogation program that are no longer classified at all, and that therefore presumably can now be discussed even by those (unlike the detainees) who were properly subject to restrictions on disclosing such matters–including information about the treatment of all 119 individuals who were in CIA custody, to wit:

• The fact that the former RDI Program was a covert action program authorized by the President in the September 17, 2001 Memorandum of Notification;

• General allegations of torture by high-value detainees, unless such allegations reveal the identities (e.g., names, physical descriptions, or other identifying information) of CIA personnel or contractors, the locations of detention sites (including the name of any country in which the detention site was allegedly located), or any foreign intelligence service involvement in the detainees’ capture, rendition, detention, or interrogation;

• The names and descriptions of the thirteen Enhanced Interrogation Techniques (EITs) that were approved for use, and the specified parameters within which the EITs could be applied;

• The techniques themselves as applied to the 119 individuals mentioned in Appendix 2 of the SSCI Executive Summary acknowledged to have been in CIA custody;

• Information regarding the conditions of confinement as applied to those 119 individuals;

• Information regarding the treatment of those 119 individuals, including the application of standard interrogation techniques; and

• Information regarding the conditions of confinement or treatment during the transfer (“rendition”) of the 119 individuals.

This is important for several reasons, not least of which is that it might mean that it is now permissible to release the vast majority of the complete, 6000-or-so-page SSCI Report. 

One other thing:  The motion relates that in April 2012, in support of the Government’s motion requesting that Judge Pohl issue the protective order, the accompanying declarations of government officials set forth the “grave harm to national security that unauthorized disclosure of such information would cause.”  I think it’s fair to say, now that such information has been disclosed, that these alarms were unwarranted and ill-advised.  No grave harm has befallen the nation.  And so it appears, at least, as though there never was a very good reason why these important categories of information about the RDI program could not and should not have been disclosed years ago.

Of course, I don’t know what those declarations said; perhaps there was a reason that is not now obvious why the declarants thought that such grave harm would result by allowing the detainees to describe their own treatment, or by acknowledging that the CIA program was done pursuant to a covert-action finding.  In retrospect, however, such assertions certainly appear to have been highly implausible.  And judges, who are regularly confronted with such declarations from the intelligence community, will undoubtedly take heed of this, especially since it appears to be a recurring pattern:  In areas ranging from interrogation to surveillance to use of force, the government argues to courts that it is a national security imperative that any and all classified information remain secret–without much in the way of describing gradations of sensitivity–and then some months or years later, the government releases some of that information . . . and the sky does not fall.

I’ve elsewhere argued that there are often very compelling, and underappreciated, reasons why some U.S. actions remain classified and not officially acknowledged — even, at times, when they are already the subject of public discussion.  I am afraid, however, that it will become increasingly difficult for the government to convince the public–and, more to the point, judges–of the legitimate need for such secrecy and nonacknowledgement if intelligence officials continue to file such implausible declarations of “grave” harm to national security whenever any details at all about covert-action programs are at issue.  Not all information about covert-action programs is equally sensitive:  The fact that there are compelling reasons why some information about a covert-action finding truly ought to remain unacknowledged does not mean that every single detail of the program (including the very existence of the presidential finding) must necessarily remain unacknowledged, or that it is necessary to try to prevent nongovernment individuals from speaking about their own accounts of how the government has treated them.  Judges are already begin to push back and to view government assertions of grave national security consequences with greater degrees of skepticism:  See, e.g., Judge Garland’s opinion for the D.C. Circuit here; and Judge Katzmann’s concurrence in the Valerie Plame Wilson case.  That phenomenon is sure to become more acute the more cases we see in which alarming declarations about the critical need for secrecy turn out to have been, well, overstated.

All of which is to say that this is, as Jack Goldsmith argued, a classic “boy who cried wolf” situation, in which the intelligence community would be well-advised, for the sake of its own credibility, to begin to exercise far greater discrimination in deciding what must remain classified and/or unacknowledged, and in its explanations to courts about such matters. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).