The Washington Independent
The Washington Independent

ACLU Lawsuit Tests Obama Openness Policies

If released, Department of Justice memos could make it difficult for Obama administration to avoid confronting whether Bush broke the law.

Thomas Dixon
Last updated: Jul 31, 2020 | Feb 10, 2009

This week, the Obama administration will face its second significant courtroom test of the president’s pledges to end unwarranted secrecy about the workings of the federal government. At stake is a set of documents that could expose intentional lawbreaking by senior Bush officials. While concealing them would seem to contradict Obama’s much-heralded promise of a new era of open government, revealing them could make it virtually impossible for the new administration to refuse to investigate potential criminal conduct by the Bush administration, something the new administration has sought to avoid.

The case, American Civil Liberties Union v. Department of Justice, has been going on for five years now, with the ACLU battling the Bush administration to turn over documents sought under the federal Freedom of Information Act that would reveal crucial information about the development of policies regarding treatment of detainees in the “war on terror” and could help determine whether Bush officials broke domestic and international law.

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On Friday, the Obama Justice Department must file its response to the ACLU’s request for three critical memos written by the Bush administration’s Office of Legal Counsel, or OLC. Those lawyers developed the legal justification for the treatment of the thousands of men and boys that the United States has detained over the last seven years as suspected terrorists.

Although the Bush administration consistently refused to produce the memos, citing various legal privileges and exceptions to the Freedom of Information law, advocates are hopeful that the new administration might take a different approach. After all, on his first full day in office, President Obama issued a presidential memorandum to the heads of executive departments and agencies instructing them to do just that.

“The Freedom of Information Act should be administered with a clear presumption,” says the Obama memorandum. “In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” Moreover, the government should never withhold documents “based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

Although Obama has only been in office three weeks, deadlines in several legal cases require his administration to quickly decide how and whether he’s going to translate his lofty promises into tangible changes in secrecy policy.

On Jan. 26, TWI wrote about the first case where the Obama administration had to state whether it would continue to assert an extremely broad version of the “state secrets” privilege to prevent a federal judge from viewing evidence of the Bush CIA’s extraordinary rendition program. On Monday, Obama DOJ lawyers supported that controversial Bush administration position in a California federal court.

This ACLU FOIA case presents the second major secrecy challenge to the new administration. This one tests directly Obama’s pledge in his Presidential Memorandum “to usher in a new era of open Government.” But as Jefferson Morely pointed out on TWI, that’s easier said than done.

Thousands of pages of documents have been revealed since the ACLU filed its first FOIA request at issue in this case, in October 2003. But the ACLU argues in its brief to the court that “the public record is incomplete with respect to an issue of enormous public importance: the extent to which United States government officials, as late as May 2005 – and subsequent to the government denouncing the widespread torture at Abu Ghraib prison – secretly authorized abusive interrogation of prisoners held in secret detention abroad in possible violation of domestic and international law.”

As Jameel Jaffer, the lead ACLU lawyer on the case, put it: “It’s clear that many of the most crucial documents, including the most crucial OLC memos, are still being withheld.”

Those memos would help determine whether the Bush administration secretly authorized abusive interrogations, even as it denounced such conduct publicly. The timing of the decisions could also help determine whether the Bush administration sought legal justification for abusive actions already taken, and that violated U.S. and international law. That would undermine the administration’s argument, made repeatedly by former Attorney General Michael Mukasey and others, that Bush officials who authorized abusive policies cannot be prosecuted because they all relied on the legal advice of administration lawyers.

“The key term there is ‘relied,’ ” said Chris Anders, Senior Legislative Counsel for the ACLU in Washington. “If you’re the one who asked for the opinion and directed what would be in it, it might be hard to make an argument that you relied on something you ordered to be done.” What’s more, “it looks like there was significant illegal conduct before the written OLC opinions,” said Anders. Such conduct couldn’t have occurred in reliance on memos that didn’t yet exist.

For example, says Anders, Attorney General John Ashcroft testified to the House Judiciary Committee that he didn’t know of any Department of Justice opinions prior to August 2002 concerning interrogation. Yet the department’s Inspector General last May reported that terrorism suspect Abu Zubaydah was arrested in March 2002, and that FBI agents reported that they thought the CIA’s tactics used to interrogate him were “borderline torture.” If legal memos were only issued later to justify the conduct, that would significantly undermine the defense that the CIA and other officials were relying on the advice of their lawyers.

The current motion pending in the ACLU’s case seeks the release of three key legal memos that they say will help reveal exactly who advised what and when.

According to the Justice Department’s briefs filed in the case, the Bush administration withheld the memos based on several exceptions to disclosure contained in the Freedom of Information Act, including that the memos provided confidential legal advice to the executive branch and contain classified information regarding “intelligence sources or methods” and “foreign activities of the United States.” (A Justice Department spokesman declined to comment further on the case.) The Bush administration interpreted the FOIA exceptions expansively, adding presumptions that disclosure would harm national security in a 2003 executive order.

But the ACLU claims that even with those presumptions (which Obama’s January memorandum appears to void), the government hasn’t shown that the documents meet the law’s requirements. Instead of the detailed explanation for each document that courts require, the Justice Department filed identical boilerplate language explaining why the exceptions apply to each of the three memos, and asserting in a declaration from Steven G. Bradbury, the author of the memos, that their disclosure “would cause serious harm to the deliberative processes of the CIA and the Executive Brnach” and would “disrupt the attorney-client relationship between OLC and the CIA and other Executive Branch entities.”

Yet for the exception to apply, the ACLU claims, the government has to demonstrate that “it seeks to protect lawful sources, methods and activities within its mandate,” that the information in the memos haven’t already been publicly disclosed, and that “the memos have not been adopted as agency policy or law.”

According to a New York Times article published in October 2007 based on interviews with unnamed government officials, the confidential memos provided “explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.” Another specifically concluded that the CIA’s tactics did not amount to “cruel, inhuman or degrading treatment” as defined by a bill then pending in Congress that would have banned such treatment.

The ACLU therefore argues that these memos were not confidential legal advice, but legal conclusions that had been adopted as administration policy, and that they authorized — perhaps after the fact –** **plainly illegal conduct. Although the ACLU can’t prove that because it hasn’t seen the memos, it insists that at the very least, the judge in the case should review the memos himself and decide whether they truly fall within the exceptions to the freedom of information law.

For the three memos we care most about we have not even gotten to the stage of a judge looking at them,” said Jaffer. “We’re still just arguing over the legal requirement to produce them.”

Under its new stated policies of openness, the Obama administration could decide to produce the documents, at least for the judge’s review, and obviate the need for months or even years of additional legal wrangling.

Hoping to make that happen, Jaffer and his colleagues on January 28 sent a letter to David Baron, the Acting Assistant Attorney General for the Office of Legal Counsel, seeking release of the memos. They note that despite three separate lawsuits seeking their release, “most of the key OLC memos are still being withheld in their entirety.”

Although President Obama in a January 21 Executive Order “Ensuring Lawful Interrogations” effectively rescinded any memos issued by OLC that would have authorized abusive or otherwise unlawful interrogation tactics, the memos are still critical to determining how the Bush administration came to authorize interrogation techniques that are widely believed to have been illegal — and to the possibility of any future prosecutions of officials involved.

Obama’s nominee to head the OLC, Dawn Johnsen, has in the past criticized the OLC memos authorizing abusive interrogations and narrowly defining torture, and cautioned against letting the matter drop. As she wrote in a March 2008 blog post on Slate: “We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.”

And in a recent UCLA Law Review article, Johnsen wrote that “Executive branch secrecy further hinders both judicial and congressional review.” Although at times secrecy is warranted, “the Bush Administration has taken the level of executive branch secrecy to a new and unwarranted extreme,” allowing the administration to engage in “years of largely unconstrained illegal practices.”

The newly confirmed Attorney General, Eric Holder, has also said he would release OLC memos whenever possible. Responding to written questions before his confirmation hearings, he wrote: “Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.”

None of these statements, of course, equals a binding promise to release the particular memos the ACLU wants to see. And Holder, in particular, has been under great pressure from Republicans not to prosecute former Bush administration officials, to the point that they held up his confirmation vote trying to win his promise that he would not investigate. (He later said he never promised anything either way.) Releasing the memos now could intensify the pressure from Democrats and many of Obama’s most ardent supporters who have been pressing for a criminal investigation for months now, and could ultimately further political divisions.

David Burnham, co-Director of the Transactional Record Access Clearinghouse at Syracuse University, which provides data about the workings of the federal government, often based on information obtained through FOIA requests, is skeptical about the new president’s promises for open government.

“When Bill Clinton and Janet Reno came in, they issued fine statements about how they were going to be open and were going to have transparency and all of that,” said Burnham. “But Ms. Reno really stiffed us. We welcome the Obama statements and all, but we’ve seen this before with the Clinton administration. And they didn’t deliver.”

“As Ronald Reagan used to say,” Burnham added, ” ‘trust but verify.’ “

Thomas Dixon | He creates the ideal marketing experience by connecting online brands with their target audiences. He recently completed a research paper on consumer conversion and took part in a community project on SEO optimization. Thomas is working on his Bachelor of Arts in Communications and plans to intern in an online marketing department soon.


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