US Releases Redacted Document Twice... With Different Redactions

from the [redacted]-if-we-[redacted] dept

We've talked repeatedly about just how arbitrary the feds can be when it comes to redacting documents that they release. Despite the fact that they're supposed to err on the side of transparency, they often go in the other direction. However, it can reach absolutely ridiculous levels, such as when they release the same document twice... with different redactions, revealing what they redacted. Even worse, they claim that the redactions were necessary to avoid having Al Qaeda be able to break prisoners out of Guantanamo Bay prison. The document was released both times as part of a case concerning detainees' access to lawyers and (more specifically) the fact that the prison was conducting "genital searches" on prisoners if they wanted to meet with their lawyers.

Part of the case revolves around a declaration from June 3rd from Guantanamo prison warden Colonel John Bogdan explaining why the genital searches are necessary. However, the US government says that if that declaration is fully made public it "would better enable our enemies to attack the detention facilities at Guantanamo or undermine security at the facility." Got that? The reason Bogdan's declaration must be redacted is that not redacting key parts would allow Al Qaeda to attack the prison.

Given that, the US government released a redacted version to a reporter... apparently forgetting (or unaware) that they had already released a different redacted version a month ago in a related proceeding on the same case. Jason Leopold at Al Jazeera explores some of the differences:

Indeed, in the public version of Bogdan's declaration submitted to the appeals court last month, the following passage is unredacted:

If the detainee would need to use the restroom in Camp 6, the meeting must end and the detainee would need to be moved by guard staff back to his cell.

The same passage, however, appears this way in the version of Bogdan's declaration released on Friday:

If the detainees would need to use the restroom in Camp 6 [redacted].

Another passage in Bogdan's declaration released on Friday says:

The frisk search that is conducted is to ensure there is nothing concealed between the clothing and the body.

However, the word "frisk" is redacted from the public version of Bogdan's declaration submitted to the appeals court last month. The earlier version also says: "At no time is the detainee's actual groin exposed to the staff," whereas that passage is redacted in its entirety in the version of Bogdan's declaration the government released on Friday.

A passage in the earlier version of Bogdan's declaration says:

Additionally, for security reasons, internal moves could not be conducted in proximity to the attorney visits.

That sentence has been redacted in the version of Bogdan's declaration released on Friday.

Another passage in the most recent version of Bogdan's statement says:

During the brief movement to the camps, detainees are restrained in a manner consistent with standard procedures for military corrections.

However, the last part of that sentence, "in a manner consistent with standard procedures for military corrections", was redacted in the public version of the declaration the government released last month.

Leopold also notes that the government claims that revealing the full document would also reveal "details about the physical layout of the detention facilities," but points out this makes no sense at all, because you can view satellite images of the prison via Google maps, and tons of reporters have toured the prison and written about the layout.

No matter what, it seems abundantly clear that, yet again, the US is giving bogus reasons for its arbitrary redactions.

Filed Under: classified, guantanamo, redactions, secrecy

Congress Abuses 'It's Classified' To Hide Stuff They Don't Want To Talk About

from the of-course-they-do dept

Reporters at McClatchy have been doing a bang up job covering government abuses lately, and their latest is a report talking about how frequently Congress abuses the ability to classify documents to hide from any sort of accountability or transparency. As the article says: "for Congress, 'it's classified' is new equivalent of 'none of your business.'" The article highlights just how frequently elected officials in Congress have been hiding behind "it's classified" lately. The article focuses on a recent effort to provide weapons to rebels in Syria. Apparently, Congress signed off on it, but it won't tell anyone the details even of who approved it, because, well, you guessed it: "it's classified."

Those were, in fact, the words Sen. Dianne Feinstein, D-Calif., chair of the committee, used when asked a few days before the approval was granted to clarify her position for her constituents. She declined. It’s a difficult situation, she said. And, “It’s classified.”

She was not alone. In a string of interviews over days, members of both the Senate intelligence committee or its equivalent in the House were difficult to pin down on their view of providing arms to the rebels. The senators and representatives said they couldn’t give an opinion, or at least a detailed one, because the matter was classified.

It’s an increasingly common stance that advocates of open government say undermines the very principle of a representative democracy.

The article highlights how Congress has realized that it can avoid having to answer difficult questions by slapping the "it's classified" claim on just about anything. But it's the difficult questions that they should have to answer, and by avoiding them, they're fundamentally avoiding their jobs. They're clearly not representing the American people, because they refuse to answer to them.

Filed Under: classified, congress, difficult questions, overclassification

Feds Say It's Classified Info To Say Who We're At War With

from the why,-we've-always-been-at-war-with-eurasia dept

Back in May, we noted the oddity of the charges in Bradley Manning's trial, in which he was accused of aiding three different "enemies," with the last one being classified. Specifically, he was accused of aiding Al-Qaida, Al-Qaida of the Arabian Peninsula (AQAP, which is different than AQ itself) and... mystery enemy. Back at the beginning of July, the government quietly dropped the charge against the classified enemy, so that's no longer in play in that case. That said, apparently this concept of classifying who we're at war with wasn't just limited to the Manning trial. ProPublica has the ridiculous and frightening tale of finding out that the answer to the simple question of who the US is at war with, is apparently classified as well.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

The Pentagon also went on to tell ProPublica that revealing who we're actually at war with would do "serious damage to national security." The main reason? They think those groups would use the info as good publicity and allow them to recruit more. But that's ridiculous, since those groups are already being targeted by the US:

Jack Goldsmith, a professor at Harvard Law who served as a legal counsel during the Bush administration and has written [6] on this question [7] at length, told ProPublica that the Pentagon’s reasoning for keeping the affiliates secret seems weak. “If the organizations are ‘inflated’ enough to be targeted with military force, why cannot they be mentioned publicly?” Goldsmith said. He added that there is “a countervailing very important interest in the public knowing who the government is fighting against in its name."

It really goes beyond that when you think about it. This lack of transparency out of some silly fear that these groups would use it to build up their own reputation is just wacky. It leaves open such massive loopholes for abuse by the government.

Every time we talk about things like this, people trot out the same old joke: it really means that "the public" is "the enemy." That, obviously, is an exaggeration, but the level of secrecy around all of these kinds of efforts -- in the mistaken belief that letting anyone know who you're fighting and what you're doing will somehow undermine the whole campaign -- is entirely antithetical to the kind of example we should be setting around the globe. And, of course, it's doubly ironic that the very same people who are defending this lack of transparency are the ones who trot out the "if you've done nothing wrong, you've got nothing to hide." The obvious response, then, is that we should be asking exactly what our government is trying to hide, because it sure sounds like they've done a lot of things wrong.

Filed Under: classified, enemies, national security, war

NSA Now Revealing A Lot More About What It Does Than Snowden Leaks Did; So Is That Harming America?

from the just-wondering dept

One of the key refrains that has come out from those who are unhappy about the revelation of details around the NSA's surveillance efforts is that Edward Snowden's leaks are somehow harmful to America. During hearings about all of this, NSA boss Keith Alexander claimed that "Americans will die" because of these sorts of leaks. But... between those same hearings and other revelations from the administration and Congress, we're actually learning much more about the various programs directly from the government, as information is now being "declassified." And, apparently, President Obama is asking the NSA and the Justice Department to look into declassifying even more. So while the initial shove to declassify information may have come via Snowden, the stuff that we're really learning about is coming through revelations following Snowden's leaks -- revelations that never would have happened without his leaks.

So that raises a fairly basic question: if Snowden is somehow a traitor and putting lives at risk... why isn't the other information we're actually learning about the programs equally as problematic? The real answer seems to be that the information Snowden leaked does not harm us at all, but has simply revealed that the government has kept classified information from the American public that never should have been classified at all. The fact that only now are they looking to declassify it (and then doing so) shows pretty clearly that the information was improperly classified in the first place.

Filed Under: classified, edward snowden, keith alexander, nsa, nsa surveillance, overclassification, secrets

Bradley Manning Accused Of Aiding [Classified Enemy]

from the even-our-enemies-are-secret? dept

Okay, so in Orwell's 1984, the powers that be may have switched who the "enemy" was arbitrarily and then rewritten history to argue we were always at war with Eurasia or Eastasia. But, at least there was a defined enemy. In the court martial case against Bradley Manning, for supposedly "aiding the enemy" by releasing State Department cables and other documents to Wikileaks, he's being charged with aiding a "classified enemy" along with aiding Al-Qaida. We've already explained why the aiding the enemy charge is highly dubious, since that charge is normally reserved for directly handing information to an enemy, not leaking it to the press. But the fact that one of "the enemies" is secret is completely messed up, and has legal scholars scratching their heads as well.

Three professors of military law - Yale Law School's Eugene Fidell, Duke University School of Law's Scott Silliman and Texas Tech University School of Law's Richard Rosen - told Courthouse News they had never heard of a case involving a "classified enemy."

When Courthouse News asked the military to explain how there could be a "classified enemy," they were told the enemy is not actually classified, but it's classified that this "known" but unnamed enemy had "classified info" that Manning is accused of leaking. Have fun deciphering this one:

"What 'is' classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified," the spokeswoman said in an email.

But, that makes no sense. After all, the documents were released publicly. Everyone could have had them. Naming the enemy here wouldn't compromise how the government "confirmed" that the enemy had the classified info. The whole case, once again, seems to resolve around some highly questionable assertions to try to make this into an "aiding the enemy" case, when it's clearly nothing of the sort.

Filed Under: aiding the enemy, bradley manning, classified, espionage act, national security
Companies: wikileaks

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.

Filed Under: classified, documents, public information, state department, wikileaks
Companies: aclu

Feds Insist That As Long As They Break The Law In A 'Classified' Way, They Can Never Be Sued

from the please-explain-how-that-works dept

The EFF has been involved in a series of lawsuits against the government and telcos concerning the almost certainly illegal warrantless wiretapping program that the US has been using for many years, which was exposed by the NY Times and Wired a few years back. The US government more or less admitted what it was doing was entirely illegal when it passed new legislation that (a) tried to make the warrantless wiretapping legal and (b) granted telcos retroactive immunity from any lawsuits for helping the government. Because of these things -- along with the US's insistence that these lawsuits would reveal state secrets -- all of the lawsuits have been dismissed. However, the 9th Circuit appeals court is now considering restating them after an appeal via the EFF.

What's pretty stunning about the federal government's position is that it seems so farcical on its face. It seems to be claiming that (1) as long as the government breaks the law in a classified way, that can never be subject to litigation and (2) if lawsuits concerning illegal activity would be a burden on those who participated in the illegal activity, then such lawsuits should not be allowed. I'm not kidding. A couple of quotes:

“Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,” Kellogg said.

Department of Justice Attorney Thomas Bondy urged the panel of judges to abide by Congress’ wishes. He repeated over and again that litigating the allegations would expose national security secrets.

“Who was or who was not surveilled, that’s classified,” he said. “What any particular carrier did or did not do, that’s all classified.”

But combine those two things and you're basically saying the government has full impunity to do whatever the hell it wants and can never face any legal consequences. On top of that, those who help the government can never face legal consequences either. How does that possibly make sense? It appears that at least two of the judges on the three judge panel had significant concerns about this:

Judge Michael Daly Hawkins wondered aloud, “If these plaintiff’s don’t have standing, who would?” Judge M. Margaret McKeown said the “concern” she had was that the suits’ dismissal “cuts off the plaintiffs … from ever pursuing a claim.”

But, those random musings aren't necessarily indicative of how the court will rule. I am hopeful they realize the plainly ridiculous state of the government simply being able to hide any illegal activity behind a claim that "it's classified," and will allow at least some of these cases to go forward.

Filed Under: classified, doj, immunity, legality, us government, warrantless wiretapping

Court Seals Unclassified Document In Whistleblower Case... After Gov't Falsely Says It's Classified

from the attack-on-leakers dept

We've discussed how, despite all his talk of "transparency" and the importance of whistleblowers, President Obama has been the most aggressive president ever in terms of attacking any whistleblowers. The administration has brought more indictments for leaking than all other presidents combined. Think about that for a second.

In one such case, against former NSA employee Thomas Drake (accused of leaking NSA info to the press), the feds are now trying to falsely claim that unclassified documents are classified -- which is actually a key point in the legal fight. Slashdot points us to the latest news in which Drake's lawyers submitted some evidence to the court concerning how the NSA classifies documents. Drake's team is arguing that nothing he had in his home or which was sent to the press was "classified," and that the NSA is falsely claiming unclassified works were classified. So here's the issue: the feds asked to court to seal the exhibits, claiming they were classified:

"As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed,"

And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings. Except, here's the thing, contrary to the statement above, "FOUO" documents are, by definition, not classified. As the report linked above points out, under DoD regulation 5200.1-R (pdf) "By definition, information must be unclassified in order to be designated FOUO."

In fact, one "sealed" document, which is still available (pdf) on the Federation of American Scientists web site, quite clearly shows that the document itself is marked unclassified: And, in a way, this actually proves the whole point of Drake's defense team. The government wants to pretend that unclassified documents that he had were classified. And, apparently without any sense of irony at all, it demonstrated its own problem of falsely claiming unclassified documents were classified, by claiming an unclassified document about how the government classifies documents... was classified! (Say that three times fast). What's troubling, of course, is that the court seemed to just accept the claim that this clearly unclassified document was classified and ordered the seal.

Filed Under: classified, leaks, nsa, thomas drake, unclassified, whistleblowers

US Contractor Follows Japanese Example: Leaks Military Secrets Via P2P

from the security-software-anyone? dept

Nearly four years ago, it was reported that a contractor in Japan who had plans for a nuclear powerstation leaked them via a file sharing app on his personal computer. It was never clearly explained why he had those classified work-related materials on his personal computer, but it led to quite a mess, with the government begging people to delete the nuclear secrets, if they found them. You would hope that with that as a guide, other government and military contractors around the world would be more careful. No such luck. Lots of folks have been sending in the news that the details on Marine One, President Obama's helicopter were recently leaked via file sharing software found on the computer of a (you guessed it) government contractor. Apparently no one takes things like basic computer security seriously anymore.

Filed Under: classified, contractor, lost data, marine one, p2p, us

Would A Patent's Title Be Classified?

from the just-wondering... dept

Ira writes in to point us to a patent application on a sort of weapons device, where the title of the patent is listed solely as "Classified." It would be interesting if some patent attorneys in the crowd could weigh in on this. If the purpose of the patent system is to distribute knowledge, then you would think a classified patent doesn't make much sense -- but this is even odder, in that it's the title, not the patent itself (which is for some sort of weapon), that is "classified." It could be that the inventor himself (Peter Lockhart) set the title as "classified" but that doesn't make much sense either. Anyone know what's going on here?

Filed Under: classified, patents