Over at the American Civil Liberties Union (ACLU) blog is a report that a federal judge ruled in the government's favor on their right to keep leaked documents classified, even though they are already out in the world thanks to Wikileaks. In April 2011, the ACLU used a Freedom of Information Act (FOIA) request to attempt to get copies and confirmation of 23 State Department cables that Wikileaks released in the fall of 2010. The government blocked 12 of the cables and redacted 11 of them in October. The ACLU responded by offering a side by side look at the two versions of the documents, so that citizens could get a look at what exactly was making the government so squirrelly. Turns out it mainly includes critiques of the U.S. government by other officials and diplomats, but there are also mentions of drone strikes in Pakistan. And yes, at the time that the cables were leaked that program didn't officially exist, but it does now, and it was obviously happening then. Why bother to pretend that this information isn't out there now? The ACLU is wondering, too.
According to their blog, the leaks:
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 additionalharms would occur from re-release of that information by the government itself. The court also rejected the ACLU's argument that the government has officially acknowledged that the cables released by WikiLeaks are authentic government documents. This matters because under FOIA, if the government has officially acknowledged something in public, it cannot refuse to release the same information in court. The court took the incredible position that, because the ACLU's FOIA request "made no mention of the WikiLeaks disclosure" and instead requested each of the 23 cables by date and title, the government's admission that it possesses all 23 of the cables is not an admission that the cables released by WikiLeaks are authentic. The court was only able to reach this conclusion because it refused to compare the versions of the cables held by WikiLeaks and those held by the government side by side. Doing so easily confirms that the cables are identical, and thus that the cables identified by the government are the same ones already disclosed to the public.
Regardless of your feelings about Wikileaks or even the ACLU, it's bizarre that the government is bothering to conceal documents that are no longer concealable. It's hard to see how information can be a threat to national security if it is just a Google search away.
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