ACLU suit for torture memos prompts their release

Hannah Bergman | Freedom of Information | Feature | April 17, 2009

After years of litigation under the Freedom of Information Act, four secret memos from the Justice Department’s Office of Legal Counsel were finally released Thursday by the Obama administration.

The memos, issued between 2002 and 2005, deal with the interrogation techniques used against suspected terrorists. The opinions were used by the Bush administration and set out what the OLC deemed to be legally acceptable practices. 

The ACLU had sought access to these and other opinions under FOIA in federal court in Manhattan.

Thursday was the final deadline the Obama Justice Department and the ACLU had agreed on for a decision on whether the memos would be made public. There was great speculation as to whether the administration would release the documents as there was no court order requiring their release, or to act as precedent in future cases.

President Obama seemed to underscore that point in his statement on the release, saying: “The exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.”

Still, the ACLU said it was pleased with the release of documents that critics have called “secret law.”

"Memos written by the Office of Legal Counsel, including the memos released today, provided the foundation for the Bush administration's torture program," Jameel Jaffer, the director ACLU’s National Security Project, said in a press release. "The memos are based on legal reasoning that is spurious on its face, and in the end these aren't legal memos at all – they are simply political documents that were meant to provide window dressing for war crimes. While the memos should never have been written, we welcome their release today. Transparency is a first step towards accountability."

Obama justified the decision in part by saying much of what the memos described was already public: “First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program and some of the practices associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.”

But on his blog, Steven Aftergood of the Federation of American Scientists noted that Obama’s justification wouldn't hold up in court as an argument for the release of classified documents.

In the vast majority of cases, Aftergood said, just because bits of classified information has been leaked doesn’t mean entire official documents bearing classified information can or should be disclosed under executive orders and case law.

“The new release does not alter this non-disclosure policy," he wrote, "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."