Court Says State Department Can Live In Fantasyland & Pretend Documents Leaked By Wikileaks Are Still Secret
from the head-in-sand-approach dept
We've talked about the problem in which classified documents that are leaked and widely available to the public are still considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren't allowed to look at these documents -- which anyone else in the world can see -- which relate to their clients. Even the NY Times called this situation "absurd." And it is. In the business world, people commonly sign "non-disclosure agreements," but they're always considered null and void if that same information becomes public by other means. It's bizarre that the government doesn't recognize the same policy.However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It's as if everyone is actively denying reality.
The ACLU relied on the part of the test that questions whether the disclosure of the information "reasonably could be expected to result in damage to national security." Seeing as anyone seeking to "damage" our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you'd think that the ACLU's argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should "defer" to the judgment of the administration on this question, and that it's possible that the official release of these documents could impact national security. I don't buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new "threat" involved just doesn't pass the laugh test.
What's most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse -- and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: classified, documents, public information, state department, wikileaks
Companies: aclu
Reader Comments
Subscribe: RSS
View by: Time | Thread
Perfectly reasonable
So logically, if something is classified and released to the world for all to read, the government then has the authority to say that the 'something' out there isn't really out there, and is therefore still classified. This argument might work for judges who may have a Swiss bank account being funded by *AAs or pharma companies. They don't actually exist, and so therefore aren't really there. But in reality, those aren't there. They don't exist. It's not real. Nothing is real. It's all made up.
Seems perfectly reasonable to me... or maybe I'm just smoking the same weed the government is. (NOTE: I don't really smoke weed. It doesn't exist so it's not there and I don't do it.)
[ link to this | view in chronology ]
Re: Perfectly reasonable
Yet we all know this.
[ link to this | view in chronology ]
Re: Perfectly reasonable
[ link to this | view in chronology ]
Re: Perfectly reasonable
[ link to this | view in chronology ]
It's weird if you phrase it your way, because you fail to understand that the copy wikileaks has is effectively illegal.
[ link to this | view in chronology ]
Re:
This is the goverment saying information that everyone already knows is secret.
[ link to this | view in chronology ]
Re:
But that's not the point here. The point isn't that the leak was illegal, it's simply that the leak was. The material is no longer secret in any meaningful way, and whether or not that should be true, it is true and trying to act as if it is not is denying reality.
[ link to this | view in chronology ]
Re: Re:
Also, I can understand the reasoning behind. If you keep considering the communication confidential the material released can or cannot be legitimate. I'm not quite sure Wikileaks can effectively prove that all the documents leaked are from official sources (although I believe most of them are).
Food for thought.
[ link to this | view in chronology ]
Re: Re:
so how come in one case the government argues it's just fine to use illegal means to publish/move data while in a practically identical similar case but where the tables are reversed is it not fine?
how hypocritical can the US gov get?
(for those who don't get it see the Megaupload harddrive cloning case case... this is practically a wikileaks in reverse... the us gov was the one doing the leak)
[ link to this | view in chronology ]
Re:
Lets say you were facing charges that carry a death sentence should you be found guilty and the only evidence that clears your name was released illegally. Would you refrain from trying to use that evidence to exonerate you or would you give up and allow yourself to unjustly be executed just because the leak was illegal?
Say it with me once again: Legality is not morality. Following the law is not always the right thing and breaking the law is not always the wrong thing.
[ link to this | view in chronology ]
Re: Re:
Okay, exactly how do you prove that the documents are 100% true?
You can't. The true secret documents may be different, they are certainly not redacted, etc.
Since the documents were obtained illegally, and there is no way to prove that they are authentic (except by violating state secrecy), then you are left with not much of anything - except that the government documents are still secret, and whatever was obtained illegally is not verified to match (and there is no way to do it legally)
[ link to this | view in chronology ]
Re: Re: Re:
Um...The government can declassify the documents. That's legal and the whole point of this.
Public officials have acknowledged that the leaks in general are valid. Why would the military be trying Bradley Manning for leaking sensitive documents if he didn't actually leak anything? If the leaks were forgeries, the government would have nothing to lose in just coming out and saying, "ha, those are fake!" Instead, it's wringing its hands about how bad the leaking is and trying to get its hands on Julian Assange.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
This has absolutely nothing to do with the information being released illegally; Guantanamo defendants are disallowed from using it because the government refuses to admit whether any given document is genuine.
Please do not make arguments about what you have utterly no understanding of.
[ link to this | view in chronology ]
Citation needed.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
http://www.businessweek.com/stories/2009-08-27/demystifying-legalese-in-contracts-part-iii-n on-disclosure-provisions
Nigel
[ link to this | view in chronology ]
Re:
Seriously? I take it you've never actually worked in business. It's completely standard.
Just look at ANY NDA. Here are a couple samples:
http://www.hbs.edu/entrepreneurship/pdf/Sample_NDA.pdf
"Notwithstanding anything in the foregoing to the contrary, Confidential
Information shall not include information which... is or becomes publicly available through no
fault of or failure to act by the Receiving Party in breach of this Agreement"
http://www.ndasforfree.com/NDAS/GetBasic.html
"Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party..."
Every NDA I've ever been party to has included something along those lines.
[ link to this | view in chronology ]
Re:
Only by really, really, really dumb people.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Reality
Wikipedia: Reality-based community
“We create our own reality.”
[ link to this | view in chronology ]
Re: Reality
[ link to this | view in chronology ]
Re: Reality
― George Orwell
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
It's just as bad as you think...
[ link to this | view in chronology ]
the courts are saying that an executive branch that lives in fantasyland is just fine.
Washington has been Wonderland for a long time.
http://cache.kotaku.com/assets/images/9/2011/04/alice5b.jpg
[ link to this | view in chronology ]
Re: the courts are saying that an executive branch that lives in fantasyland is just fine.
[ link to this | view in chronology ]
The judge applied the law, which is what judges do. The judge didn't work backwards, which is all you ever do. Can you actually demonstrate how the judge misapplied the law, or are you just whining--again?
[ link to this | view in chronology ]
Re: yes I can show it
It was part of my Job to go through Documents in the classified files and restamp them "unclassified", are you implying that Pres Reagan was a lefty or something??
this was and always has been the SOP for classified documents going back to WWII
Dunno why it would be different now, find a classified Message clerk and ask to to see the (unclassified) SOP
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
So, are these politicians some kind of reality warpers? Are they trying to deny (when I read it, I thought it was 'defied') reality by making it where they get the court to rule in their favor and have them continue to live in this fantasy land?
... Must be a nice place to live in.
[ link to this | view in chronology ]
Re:
The "intelligence" and military industrial segments of the government are not up for election as politicians are but I suggest they wield a lot of power in government.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
New leak
then it switches to oil and big business execs taking turns are romneys butt.....
but your not allowed to see it....
[ link to this | view in chronology ]
Re: New leak
[ link to this | view in chronology ]
Re: New leak
[ link to this | view in chronology ]
Re: Re: New leak
[ link to this | view in chronology ]
Plausible deniability?
Maybe they're just trying to retain their "nuh-uh, prove it" defense to "he said you were doing this".
[ link to this | view in chronology ]
Re: Plausible deniability?
[ link to this | view in chronology ]
Re: Re: Plausible deniability?
I imagine that is the same face made by some poor government mole soon as he realizes how true your statement is.
[ link to this | view in chronology ]
Re: Re: Plausible deniability?
[ link to this | view in chronology ]
Hmmmm
In the case of a classified release, it would be difficult to prove electronic documents had not been tampered with prior to or even after release. I guess if they were released with a hash, you could verify no changes subsequent to release, but not prior. Deliberate disinformation, anyone?
I seriously doubt this is the case with Wikileaks, and I think a better "cover up" strategy would be to keep the official documents classified and treat the Wikileaks documents there as if they didn't matter. In fact, government reactions so far seem to lend the most weight to the authenticity of the leaked documents. Unless there's a lot we don't know, it really looks like this has been handled incompetently from the start.
[ link to this | view in chronology ]
Sorry, I'll get back in line, Baa
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I always thought it would be nice though if someone would run for President and be brutally honest. Just stand up and say "I don't give a fuck what the public wants I'm going to go do what the fuck I want". I think I would probably vote for him. Be refreshing to at least have a guy who is honest about it.
[ link to this | view in chronology ]
Re:
And if my mother was correct, we can all grow up to be anything we want!
[ link to this | view in chronology ]
Re:
In other words Mike is doing something about it and if you don't understand what that is or why it's important then you are less a troll and more a silly uniformed dumb ass.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I would think you would not like it if codes that would allow terroists to launch nukes from the comfort of their home computers.
Of course even having a system that makes such a thing possible is insanely irresponsible. But you get to point.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
True, but...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The Crimson Crown
[ link to this | view in chronology ]