US State Department headquarters (photo: AgnosticPreachersKid / Wikimedia Commons)

A district court judge has denied an effort by the American Civil Liberties Union (ACLU) to force the United States State Department to release all portions of twenty-three diplomatic cables, which the organization sought through a Freedom of Information Act (FOIA) request. Eleven cables requested had been released by the State Department in part. The judge showed deference and agreed the department had not made any official acknowledgment that the cables released by WikiLeaks were, in fact, actually State Department diplomatic cables. The judge also found the State Department had properly demonstrated that an official disclosure of all the cables and contents, which had not been released yet, could reasonably be expected to “result in damage to national security.”

A basic requirement for classification is that the government show releasing it to the public would result in some kind of harm or damage to national security. Nathan Wessler of the ACLU’s National Security Project, who worked on briefings for the case, explained that “in a case like this where the record is already in the public because it’s been disclosed,” the government must show “some additional harm would happen” if the government itself released the record. This “additional harm” would be “harm” that has not already happened by the document already being in the public domain.

The court decided the government had no obligation or responsibility to demonstrate “additional harm” would be caused. The State Department was permitted to pretend the cables being requested had not actually been released yet, which Wessler described as “preposterous”:

We requested twenty-three State Department cables by their name and date and identifier number and other information. The government responded to that request by identifying all twenty-three of those records, telling us that it in fact had those records and then releasing eleven of them in part to us and withholding the other twelve. The court says that, because our FOIA request didn’t state that those records had already been released by WikiLeaks, that we just requested the records. By not saying the word “WikiLeaks,” somehow the government’s acknowledgment that it had copies of these records did not constitute an acknowledgment that records released by WikiLeaks are authentic. But that’s preposterous because, for one, the records released by WikiLeaks and the records we [sought] had the identical names, identifier numbers, they originated at the same embassies and moreover if you compare the public versions from WikiLeaks with the portions of the cables released by the government, they are word for word identical. So to suggest that the government’s acknowledgment that these cables exist doesn’t acknowledge that these cables are real just makes no sense. [emphasis added]

Incredibly, the State Department wants to have it both ways. The department has fully supported the military prosecution of Pfc. Bradley Manning, the soldier who allegedly released over a quarter of a million diplomatic cables (along with tens of thousands of other classified documents) to WikiLeaks. The department has had witnesses from the State Department, who were involved in responding to crises created by WikiLeaks’ disclosure of the cables, testify under oath in a military court about what was done in the immediate aftermath. Yet, in a US District Court, Wessler noted it refused to confirm whether the records WikiLeaks released were “authentic government records” so they could “avoid transparency and accountability.”

There is no way the ACLU could have made such a detailed and specific request for the cables “if they hadn’t already been public.” The government, according to Wessler, basically showed the absurdity of its secrecy regime by refusing to officially disclose the records.

“Anyone with an Internet connection can see exactly what’s in the documents the government is withholding,” Wessler added. “Really, all the government has achieved is to point out to the world which parts of the cables they think are the most sensitive and which parts are the least sensitive.” [The ACLU has put together a page that lets people compare the government's versions of officially released cables to versions of cables released by WikiLeaks, which the government maintains are not really authentic cables even as it prosecutes someone for their release.]

The judge gave the State Department a gift in this case. Had they been forced to demonstrate that additional harm would be caused, they would not have been able to demonstrate anything beyond speculation. That is why the government introduced a motion to preclude the defense from discussing “actual harm” or “damage” in open court on the basis that it is not relevant to the charges against Manning. It also is why military prosecutor Major Ashden Fein has made the ridiculous argument that just because there wasn’t damage today doesn’t mean there won’t be any damage because “tomorrow there could be harm.”

Manning’s defense lawyer David Coombs addressed this in a reply to the government’s motion:

The damage or injury that is contemplated under [Espionage Act] cannot be too remote or fanciful, or there is a risk that the section will be converted into a strict liability offense. Anything “could” happen – the world “could” end tomorrow; Kim Kardashian “could” be elected president of the United States of America; I “could” win the lottery. These are not the types of “could” that l8 U.S.C. Section 793 contemplates. Therefore, the Defense should be able to probe whether the witness’s testimony that the information could cause damage to the United States is remote, speculative, far-fetched and fanciful by examining such witnesses on the fact that two years after the alleged leaks, the conclusion is still merely that the information “could” cause damage – not that it “did” cause damage. [emphasis added]

Undoubtedly, the State Department faced the same predicament in this ACLU case. Wessler said one of the key reasons the ACLU pursued the lawsuit was because they wanted to force the government to officially declassify records, which would potentially be helpful in lawsuits against rendition, torture, or the targeted killing program. The would never have been able to show that disclosing details on rendition, torture, or the targeted killing program would result in damage or harm to foreign relationships that has not already occurred because the leaders read about the cables in the news or thinks the US is engaged in a coverup of what has happened with regards to rendition, torture and targeted killings.

The State Department claimed it had to protect details of “military flight operations, the procedures for obtaining allied cooperation in the performance of military flight operations and communications with Canadian officials” that included “intelligence activities, sources or methods.” All of the details being protected had to do with the carrying out of rendition, which typically involves gross violations of human rights.

In conclusion, this is all one big secrecy game. The judge abdicated her responsibility by not forcing the government to make a showing that additional harm could occur. However, in the process of shirking her responsibility, she helped make a key point the ACLU had intended to make, which is that the government engages in severe overclassification and has, as Wessler put it, “insufficient mechanisms to declassify records that should not be kept secret.”

The government would like to just file records away that likely contain no information that meet the standards for classification so sunlight doesn’t shine on them until thirty or forty years from now. Marguerite Coffey, former director of the Office of Management Policy, Right Sizing & Innovation Policy in the State Department, said this much to Coombs during a June hearing. Typically, cables would be captured in the National Archives until they found “their expression thirty to forty years down the road.”

You know the great thing about not releasing information until decades after it is classified? That means the information will never be used in lawsuits against agencies or institutions engaged in crimes, misconduct or wrongdoing. People who should be held responsible for the actions will never face accountability. And that is a good part of why the problem of overclassification is so severe in government.

Update 

Director of the ACLU’s Speech, Privacy & Technology Project, Ben Wizner, made this statement:

The court’s decision will leave many Americans scratching their heads, and rightly so…The embassy cables have been published throughout the world, and Bradley Manning is being prosecuted for leaking them. Yet the court accepted the highly dubious argument that these widely disseminated documents remain properly ‘classified.’ By endorsing this legal fiction, the court does further damage to the government’s credibility and undermines the legitimacy of any future government claim of secrecy.