ACLU Drags The State Department To Court For Its Failure To Declassify Publicly Available Documents

from the joseph-heller's-coffin-clocked-at-over-7,200-rpm dept

Wed, Jun 15th 2011 1:31pm — Tim Cushing

Of all the spectacle surrounding the Wikileaks/Cablegate situation, nothing has proven to be more bizarre than the U.S. government's actions and policies concerning the continued classification of the leaked cables. One of its first efforts was its patented "escalating response", in which it first blocked off the Wikileaks site, followed by any site with the word Wikileaks in the title and, when this didn't seem to be burying its employees' heads in the sand quickly enough, it reached out to various security firms to see if they could build some sort of Wikileaks filtering system for its computers.

Things turned even more surreal when lawyers for Guantanamo detainees were not allowed to view leaked documents that had been published online by various news services. When is public information not truly "public?" Well, when it's "classified," of course. Had the principles not been currently fighting a legal battle in a U.S. court, they could have joined the rest of the U.S. (and the world) in reading and using these leaked documents.

In the business world, if a document is considered secret, it's commonly accepted that if it becomes public by other means, those with a contractual obligation not to discuss are now free from their obligations. This makes sense. Pretending that documents that are publicly available for all and which have been widely discussed in the press are not "public" doesn't make sense.

With a recently filed lawsuit against the State Department, the ACLU hopes to bring this legal catch-22 to its illogical conclusion and make publicly published documents officially public. Andy Greenberg (Forbes) explains the ACLU's rationale:

Given that all those memos have already been covered by the news media, why bother to declassify them anyway? "The point is to expose the legal fiction that the secrecy system rests on," says Ben Wizner, a staff attorney for the ACLU. "The government uses this formality of secrecy to avoid having to answer for real violations of the law."

Wizner says that keeping the documents classified makes them much more difficult to use in courts, for instance, and allows the government to avoid confirming their authenticity.

The files that WikiLeaks released on Guantanamo detainees in April, for example, can’t be used by the defense lawyers for those prisoners unless they’re viewed in a secure government facility. “Government employees can’t read the New York Times. When I go to court in a real lawsuit seeking to get compensation for a victim’s ordeal and hold people liable, I can’t use this information,” Wizner says.

This should prove to be an alternately infuriating and entertaining case. There's going to be a whole lot of circular reasoning in play, all of it under the pretense of protecting state secrets that everyone already knows. The sad part is that taxpayers will be footing the bill for the government's last-ditch attempt to close several barn doors, while warily keeping an eye on all the free-roaming horses.

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Filed Under: cables, classifications, state department, wikileaks
Companies: aclu, wikileaks

15 Comments

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PrometheeFeu (profile), 15 Jun 2011 @ 1:51pm

Hey Mike! Stop being a jerk. How would you like it if I told your children that Santa Claus doesn't exist? If the government wants to believe that those documents are secret, it's a magical thing that should be cherished. They will learn the truth when they are old enough.
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Capitalist Lion Tamer (profile), 15 Jun 2011 @ 2:07pm

Re:
Sir, I am that jerk.
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Old Fool (profile), 15 Jun 2011 @ 2:15pm

Re:
Santas existence and whereabouts are classified for security purposes.
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Anonymous Coward, 15 Jun 2011 @ 2:19pm

Also, can I just say: this is the best use of the term "Catch-22" that I've seen in several months. Most of what people use it for these days is not at all consistent with the ideas of the novel.
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Anonymous Coward, 15 Jun 2011 @ 2:20pm

Re: Re:
Santas existence and whereabouts are classified for security purposes.

for... for the children?
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Nathan F (profile), 15 Jun 2011 @ 2:29pm

Re: Re:
Oh crap.. NORAD is in big trouble then since every year they make Santa's current position and speed available on Christmas night..
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HothMonster, 15 Jun 2011 @ 2:37pm

Re: Re: Re:
Thats just part of smoke and mirrors, like all the Santa look-a-likes they send into the urban sprawl to prevent effective assassination attempts.

If you are hunting Santa the only thing Norad tells you is where not to look.
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bosconet (profile), 15 Jun 2011 @ 2:52pm

Pentagon Paper Insanity
Keeping documents classified LONG after they have become public knowledge is nothing new for the US Government. Take a look at the Pentagon Papers that were just declassified 40 years after Daniel Ellsberg leak to the NY Times was published.
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Jeff (profile), 15 Jun 2011 @ 4:04pm

I hope the ACLU wins
But even if they do... chances are the judicial branch will issue a reading sufficiently narrow enough to make the whole thing pointless. I picture a situation where the ACLU wins, but the court will restrict it in such a manner to render that win meaningless in practical terms.
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Lawrence D'Oliveiro, 15 Jun 2011 @ 5:46pm

So, The US Has Its Own Version Of �Superinjunctions� After All ...
n/t
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aldestrawk (profile), 15 Jun 2011 @ 9:00pm

lawyers access
The restrictions on reading Wikileaks documents for the lawyers representing the Guantanamo detainees has been eased.
From a June 10th NY Times article:
http://www.nytimes.com/2011/06/11/us/politics/11wiki.html

"In guidance to the lawyers � who have security clearances, and so are required to follow government rules for the handling of classified information � the department�s court security officer said Friday that they were now permitted to view the leaked documents on the Internet."

�While you may access such material from your non-U.S.-government-issued personal and work computers, you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information,� the directive said.

The wording in this last paragraph is from the Department of Justice and appears to ignore the technical reality that viewing a document in a browser requires a copy of that document to be downloaded to your computer. I don't think they are that naive. Instead, it is probably their way of saving face and pretending that all the security restrictions needed are still in place for a classified document while avoiding any problems in court for their prosecution of these detainees. The truth, of course, is that once a classified document is public, there is no point in maintaining policies intending to keep that, still classified, document secret.
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thedigitari, 16 Jun 2011 @ 5:27am

unclassified
the Military Directive in this matter is clear. Immediate declassification, the directive comes directly from the Government, why would their rules be any different? Have any of you googled the SOP for declassification? it should be unclassified. FOIA anyone?
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Anonymous Coward, 16 Jun 2011 @ 6:46am

Re: lawyers access
The wording in this last paragraph is from the Department of Justice and appears to ignore the technical reality that viewing a document in a browser requires a copy of that document to be downloaded to your computer.

That wording means that the restrictions haven't actually been lifted.

I don't think they are that naive.

I don't either.

Instead, it is probably their way of saving face and pretending that all the security restrictions needed are still in place for a classified document while avoiding any problems in court for their prosecution of these detainees.

No, it is their way of keeping the restrictions after all. It would be naive to think otherwise.
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PrometheeFeu (profile), 16 Jun 2011 @ 10:53am

Re: Re:
That will teach me not to read the by-line. Thank you for coming out though. We wouldn't want to direct our anger at the wrong jerk. ;-)
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aldestrawk (profile), 16 Jun 2011 @ 4:53pm

Re: Re: lawyers access
The wording seems to be contradictory. However, it is clearly stating in the first part that the lawyers may read documents such as the Wikileaks detainee related state department cables in the New York Times and from their personal, "non-U.S.-government issued" computers. I can imagine that a lawyer might like to highlight certain passages, save or print out copies of these documents. They still can't do that, but they can at least read them.
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