Feds Can Pretend Leaked Documents Are Still Secret, Says Court


Top Secret

We all enjoyed playing make-believe when we were kids. We pretended to be on adventures, in combat, holding court … It was fun, but even as kids we knew we were just pretending, and eventually it'd be time to get back to reality. We acknowledged that we weren't really cowboys, astronauts and princesses. And, as adults, we should be able to acknowledge that, when WikiLeaks has published government documents for the world to see, they aren't secret anymore. The feds, though, are having a little trouble letting go of the fantasy.

From the ACLU:

This morning a federal judge ruled that the government is free to continue pretending that the contents of State Department diplomatic cables already disclosed by WikiLeaks are secret. The case concerns an ACLU Freedom of Information Act request seeking 23 embassy cables that had been previously released by WikiLeaks, posted online, and widely discussed in the press. The government had responded by releasing redacted versions of 11 cables and withholding the other 12 in full.

The cables we requested reveal the diplomatic harms of widely criticized U.S. government policies, including torture, detention and rendition of detainees, detention at Guantanamo, and the use of drones to carry out targeted killings. The State Department claims that the withheld cables are classified, and thus so secret that they cannot be released—despite the fact that they are already accessible to anyone in the world with an internet connection and a passing interest in current events.

In order to avoid releasing its own copies of the cables, the government was required to prove to the court that doing so would cause harm to national security. It offered explanations of why releasing secret State Department cables might harm relations with foreign governments or disclose sensitive information, but failed to explain what harm would come from releasing cables that are already available to the public in full, and that the government has admitted have been leaked. The court accepted the government's lackluster arguments, and did not even discuss the requirement that when information is already in the public domain, the government must explain what additional harms would occur from re-release of that information by the government itself.

In fact, while Judge Colleen Kollar-Kotelly acknowledges (PDF) that "the burden is on the agency to justify withholding requested documents" she goes on to argue that it defers to the executive branch's claim that "it is both plausible and logical that the official disclosure of the information at issue in this case 'reasonably could be expected to result in damage to the national security.'" This is the determining factor in the case, the court continues, because "there can be a critical difference between official and unofficial disclosures" and the fact that the cables sought by the ACLU are now in the public domain only matters if all the following criteria have been met:

First, the information requested must be as specific as the information previously released. Second, the information requested must match the information previously disclosed . . . . Third, . . . the information requested must already have been made public through an official and documented disclosure.

But the feds refuse to admit that the cables released by WikiLeaks are the same as the identical (except for redacted information) ones the ACLU wants to use in court, so:

No matter how extensive, the WikiLeaks disclosure is no substitute for an official  acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure. Although the ACLU points to various public statements made by Executive officials regarding the WikiLeaks disclosure, it has failed to tether those generalized and sweeping comments to the specific information at issue in this case—the twenty-three embassy cables identified in its request.

This means that the federal government gets to continue to pretend that the cables are still secret. Yes, it's like playing at being an astronaut, forever.

Have some fun and compare the WikiLeaks and government versions of the cables side by side.