CH: Now that some memos have come out now in an official release, a governmentally acknowledged release, does that change at all the degree to which former officials can speak about the stuff in the documents?
JJ: Yes. They’ve declassified this material so people who previously couldn’t talk about legal theories and specific techniques are now free to do that.
CH: What does the release of the OLC memos mean legally for other memos that you guys might be trying to a look at? Does the fact that these were released willingly and officially by the government in the course of a lawsuit change how easy it might be to get similar documents?
JJ: We will argue that, yes, to the extent that the government has disclosed and acknowledged facts about the CIA’s interrogation program, at the very least documents that relate to those facts can’t be properly withheld. I don’t think the government is going to dispute that proposition.
But the documents aren’t going to be identical. They’re going to relate to the same basic program, but be different sorts of documents. And it’s possible that there will be disputes about what can and can’t be released given the release of the memos. But we’re still hopeful that the new administration has made a decision not just that these memos can be released, but that certain information about the CIA’s program that, until now, has been withheld, not just can be released, but should be released to the public. So, rather than go directly to the court and say, “Order the government to release these other documents,” our first step will be to go to the administration and say, “Now that you’ve released these memos, we hope you’ll consider releasing the following documents as well.”
Possibly, after that, we’ll probably have to go to court. But, we would much rather this be done without litigation. And, you know, President Obama did issue new FOIA guidance that said they’re going to withhold documents only when disclosure would result in an identifiable national security harm. While these are still early days, I think the release of these memos is an indication that he takes that promise seriously.