Sen. Russ Feingold held a hearing this morning on the topic of government secrecy, and he had bombshell of his own — at least it’s news to me:
Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.
I can’t find a transcript of the hearing as a whole but the prepared testimony (available here in PDF form) makes fascinating reading. I’m particularly fond of the statement given by J. William Leonard, former director of the Information Security Oversight Office, one of the institutions that governs the definition of “classified.” He admits he’s not a lawyer upfront, which might be why his testimony is so lively. He focuses on the OLC March 14, 2003 memo about prisoner interrogation:
To learn that such a document was classified had the same effect on me as waking up one morning and learning, after all these years, there is a “secret” Article to the Constitution that the American people do not know about.
I believe that’s the right of the president to spy on you!
More Leonardaciousness after the jump.
Whoever affixed classification markings to this document had either profound ignorance of or deep contempt for the process set forth by the President…to restrict the dissemination of specific information in the interest of national security.
Who says it can’t be both? Though, later, it becomes clear that he suspects the latter:
This memo was not some obscure, meaningless document written by a low-level bureaucrat who did not know any better… Each of these government officials [involved in the creation and classification of the memo] 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…conditions under which information will be classified.
And then there’s the memo’s content:
Use of classification in this instance is a prime example of how classification is used, not for purposes of national security, but rather as a bureaucratic weapon to blunt potential opposition. Reportedly, top lawyers for the military services did not receive a final copy of the OLC memo, in party because they opposed the harsh interrogation techniques endorsed in the memo.
To summarize, this administration’s interpretation of executive power means:
Thus, at least in theory, the President could authorize the classification of the OLC memo, even though to do so would violate the standards of his own governing Executive Order. Equally possible, the President could change his Executive Order governing secrecy, and do so in secret, all unbeknownst to Congress and the courts. It is as if Lewis Carroll, George Orwell, and Franz Kafka jointly conspired to come up with the ultimate recipe for unchecked executive.
Of course, they didn’t really need the literary firepower. Just Cheney!