Feds Can Pretend Leaked Documents Are Still Secret, Says Court

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.

Comments

[R C Dean]

Jeebus. How can that judge not be embarrassed to write that opinion. I can only see continued classification of leaked documents if someone states, on oath, that the leaked documents are forgeries or have been altered, so that there are material differences with the classified documents.

[silent v]

I guess I can see the government's point of view on this one. Leaked documents may or may not be the real thing. By releasing them through FOIA, they are known to be the real thing. And if they get in the habit of releasing documents that are authentic, everyone knows which documents are valid and which have been modified or invented from whole cloth.

SLD: The government should be more open and more responsive to FOIA. I am just saying that if you believe the government withholding information from its citizens, then the fact that some documents which may or may not be real have been released on WikiLeaks does not change the government's position.

[Mad Scientist]

Sure, but if they release a redacted document when the unabridged version is readily available, it makes them look pretty damn silly. If the leaked doc looks anything like the redacted doc, then it's obvious it IS the real doc. Releasing a redacted version just tips your agency's hand as to what sort of BS they consider to be secret.

[BakedPenguin]

Most of the things the government classifies are ludicrous. They once classified a "silent weapon system" - a crossbow. I am not joking.

Got to keep that 14th century technology on the down low.

[Pro Libertate]

The United States government can neither confirm nor deny awareness of the existence or nonexistence of the device referred to as the "crossbow."

[Mad Scientist]

I wonder if stuff like that is some other subterfuge. For example, if you know or suspect that the Soviets are reading some of your classified docs, do you toss in some "secrets" about crossbows just to fuck with them?

[Pro Libertate]

We can neither confirm nor deny the existence of the Soviet Union.

[Number 2]

If the document is already public, why is the ACLU filing suit to obtain them? Can't they simply be downloaded from the Internet?

The fact that the ACLU is petitioning for release of the documents suggests that the documents leaked to the Internet either are not genuine or are incomplete. Either that, or the ACLU is wasting everyone's time by suing for documents that are already available to the public.

[Mad Scientist]

I believe the government's position has been that even though the docs have been leaked and are readily available, they are still classified, so sharing them or reading them or talking about them or thinking of them dreamily in bed at night is espionage. The ACLU us suing to have them "released" so that the feds will stop bothering people for reading them.

[jdtuccille]

The ACLU wants to use these documents in its legal cases. They can only be admitted in court if ... you get it.

[Enjoy Every Sandwich]

But if you download the docs from the Internet and the government insists that they're "classified", haven't you committed a "crime"?

Obviously "terrorists" wouldn't care about that, but American citizens seeking the truth about their government shouldn't have to face prosecution to access something that Al Qaeda dudes can read with impunity.

[Libertarian]

You're exactly right. If they're officially secret, than possessing them makes you a criminal. Why would the govt want fewer criminals? There's no control in that!

[Tulpa the White]

Right on, silent v. But do keep in mind you're going against the groupthink and now must pay the price.

[Randian]

Would somebody take Tulpa out? He's been begging to be played with all day and it's starting to get annoying.

[Hugh Akston]

So my question for people who live in the DC area: Is there any indication that you've entered a separate reality? Air ripples, or spatial distortions or green flashes, something like that when you cross the beltway?

I just wonder if there is any truth to the effects you see on TV when characters cross into a parallel dimension.

[Somalian Road Corporation]

The only time I've been to DC was during the height of the Lewinsky scandal, so I am at times curious how accurate my imaginings are of the current state of affairs. Not curious enough to make going there any kind of priority, mind you.

[Raston Bot]

There is a trace scent of humanure whenever anyone opens their piehole.

[Adam330]

If the leaked cables aren't the real cables, then I guess the US will stop attemping to prosecute Julian Assange. Right?

[Enjoy Every Sandwich]

"damaging to the national security" = "embarrasses the shit out of some politician".

[Tulpa the White]

I'm with silent v -- I suspect the govt's argument (and it's a weak one) is that their confirmation of the leaked cables as authentic could conceivably harm national security.

However, the content of the leaked documents are so obviously irrelevant to national security that they should never have been classified if they are authentic.

[Jennifer]

I seem to recall, when the Wikileaks story was new, a directive effectively forbidding government employees from knowing what they said - yes, even as their contents were splashed on the front pages of news publications. Which made me think how times change: when I was a kid, my career-Navy dad surely did top-secret things that have yet to be unclassified, and at the dinner table he had to watch his mouth to ensure he didn't accidentally let slip some national security secrets when he talked about his day. But his kids could say whatever the hell we wanted to him, with no fear of violating security, let alone endangering his job.

Now, in government families, it is the opposite: when kids talk about what they did in school, especially what they discussed in current events class, the 13-year-old needs to make sure she doesn't pollute Daddy's ears by mentioning the Wikileaks story on the front page of that day's Washington Post. The kids can know all about it, but adults with security clearances have to cover their ears and shout "LA LA LA I'M NOT LISTENING."