OLC Memo Release Opens the Door

Steven Aftergood of the Federation of American Scientists, one of the nation’s foremost secrecy experts, has an extraordinary post up giving some must-read context to the Obama administration’s decision to allow the release of four long-sought Bush era memos outlining torture policy from the Office of Legal Counsel.

Aftergood reminds us that Obama, in his statement explaining the decision to release the memos, said that to further withhold the documents would “only serve to deny facts that have been in the public domain for some time.”

The sentiment is curious, Aftergood continues, because U.S. classification policy explicitly allows the government to keep information classified that has been otherwise disclosed, unless the information being sought meets a three-pronged test.

In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure. …

But the four newly declassified memos are now themselves “an official and documented disclosure.” This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed. Such material can no longer legitimately remain classified. Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.

Under this formula, each “official and documented disclosure” lowers the bar for the next. And that raises a question.

What will these new memos beget?

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.