Accountability and the Immaculate Classification

In April of last year, Senator Russ Feingold (D-WI) chaired a hearing of the Senate Judiciary Subcommittee on the Constitution. The subject was “Secret Law and the Threat to Democratic and Accountable Government.” The focus was on one of a series of memos on torture written by the Department of Justice’s (DoJ) Office of Legal Council (OLC), specifically the March 14, 2003, memorandum to the Department of Defense (DoD) on interrogation of enemy combatants. This memo effectively authorized the DoD to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. As it turned out, this legal product was so lacking in its analysis that DoJ had to advise DoD to no longer rely upon its legal reasoning a scant nine months after the memorandum’s issuance, a reportedly unprecedented step for OLC to take within the same administration in which the withdrawn opinion was issued.

I had the opportunity to testify at this hearing. I expressed profound disappointment because this memorandum represented one of the worst abuses of the classification process that I had seen during my 34-year career. The memorandum is purely a legal analysis – it is not operational in nature and it contains no references to intelligence sources or methods, or any other information of value to an enemy. What is especially disturbing is that this memo was not some obscure, meaningless document written by a low-level bureaucrat who did not know any better and had inadequate supervision. Rather, the memo was written by the Deputy of the OLC, the very entity which has the responsibility to render interpretations of all Executive orders, a responsibility that includes the governing order that distinguishes between the proper and improper classification of information. In addition, the memo was addressed to the most senior legal official within the DoD and was reportedly shared with some of the most senior officials in the Executive branch, including the then White House Counsel as well as the then Counsel to the Vice President. Like all people with a security clearance, per the President’s direction in the governing Executive order, each of these government officials had the affirmative responsibility to challenge the inappropriate classification of information. There is no evidence to suggest that any of them did so in this case – even though the memorandum failed on almost every level in fulfilling the President’s direction concerning conditions under which information will be classified.

One significant failure was the complete absence of any indication as to under whose authority the memo was classified in the first place. Despite submitting to DoJ questions for the record that included a request to identify under whose authority the memo was classified and why, a direct answer was never provided.

Therein lays one of the greatest challenges as the new administration looks to revise the current classification regime, the lack of any real accountability for such abuses of the classification system. While it is entirely appropriate that we consistently hold accountable, both criminally and administratively, people who are responsible for the unauthorized disclosure of classified national security information, the current governing Executive order makes it abundantly clear that people who “classify or continue the classification of information in violation of [the] order or any implementing directive … shall be subject to sanctions … [to] include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions…” There is no evidence to suggest that such sanctions have been imposed in this or any other instance of classification abuse.

Failure to apply meaningful sanctions for abuse of the classification system makes it increasingly difficult to preserve the integrity and credibility of a process that is an essential national security tool. The threat to our national security that over-classification represents continues to be a bane that our nation – as well as the members of our military and intelligence services whose well-being depends upon the classification system’s integrity – continue to endure. They and we deserve better.