August 14, 2008
Can (Should) White House Legal Memoranda Be Classified as State Secrets?
In Secret Documents: Why Classify Legal Memos? Louis Fisher want to know why the notorious "Military Interrogation of Alien Unlawful Combatants Held Outside the United States" legal memo by John Yoo was a state secret. He writes "Although declassified [five years after being written] there is no explanation of when it was classified, why it was classified, and who classified it, all of which is required by Executive Order 12958. The memo consists purely of legal analysis without indicating any matter clearly sensitive and deserving of some level of classification. How can the rule of law be protected when policy is governed by secret legal memos?"
Why Try to Keep the Yoo Memo Secret? Because the memo “takes an extremely broad view of the president's power as Commander-in-Chief” according to Jameel Jaffer, Director of the ACLU National Security Project. "If you believe this memo, there is no limit at all to the kinds of interrogation methods the President can authorize." (emphasis added) The memo argued that:
- Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad
- Federal criminal laws generally don’t apply to military interrogations of enemy combatants. If they were misconstrued to apply to the interrogation of enemy combatants, such statute would conflict with the Constitution’s grant of the Commander in Chief power solely to the President.
Yoo is now a law prof at Berkeley. His web profile has this to say about his DOJ years:
He served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.
(Emphasis added) [RJ & JH]
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