How can something that doesn't exist be classified? Ask the Justice Department's Office of Legal Counsel (OLC). Responding to a Freedom of Information Act (FOIA) request from my organization (Government Accountability Project) for the secret memo rationalizing the assassination of American Muslim cleric Anwar al-Awlaki, the Justice Department said:
the Office of Legal Counsel can neither confirm nor deny the existence or nonexistence of records responsive to your request . . . because the very fact of the existence or nonexistence of such records is itself classified . . .
To confirm the memo's existence, perhaps the Justice Department should read the front page of the New York Times, which contained a lengthy article with specific details from the memo, including the memo's authors, date, legal analysis, conclusions, and who from other agencies weighed in.
Or, DOJ could read the Washington Post, which broke the story about the memo days after Al-Awlaki's death:
The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.
The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.
The layers of hypocrisy are too numerous to count.
Anonymous "administration officials" can leak the memo's details to the press - and they make sure to assure us that "there was no dissent about the legality." But DOJ refuses to "confirm or deny" even the memo's existence when I request the information using proper channels.
Then there's the hypocrisy that whistleblowers accused of disclosing or mishandling classified information get Espionage Act prosecutions under Obama.
Not to mention that while prosecuting whistleblowers at record rates and refusing to acknowledge officially what "administration officials" strategically leaked through back channels, the Obama administration repeatedly touts that it is "the most transparent in history."
Transparency does not mean simply releasing information that makes government look good when strategically advantageous. Any run-of-the-mill dictatorship can manage that sort of "transparency." Real government transparency means releasing information to facilitate informed public debate about government actions.
Regardless of whether you agree with the Obama administration's decision to kill al-Awlaki, we can certainly agree that Americans cannot be excepted to permit such controversial decisions without an informed public debate. We cannot be forced to rely on "anonymous administration officials" for selective information from the very Executive branch seeking to curry favor for its decision to kill an American citizen.
Even the WaPo editorial board -whose defense of the al-Awlaki assassination I disagree with - agreed that the Justice Department should release the memo.
The Justice Department's absurd response to the request for the al-Awlaki memo is a perfect demonstration of the excessive secrecy and overclassification plaguing our national security establishment. Of course there are real secrets to protect (troop movements, sources and methods, etc), but the Justice Department has shown again and again that, as former classification czar under George W. Bush, J. William Leonard, wrote in criticizing the Justice Department's handling of the case against whistleblower Thomas Drake:
Every 6-year-old knows what a secret is. But apparently our nation's national security establishment does not.