Tuesday, July 24, 2012

Documents in Plain Sight, but Still Classified


July 23, 2012

Documents in Plain Sight, but Still Classified


WASHINGTON — Can a government document be both publicly available and properly classified at the same time?

That is not a Zen riddle. It is a serious question posed in a provocative lawsuit filed last year by the American Civil Liberties Union, and on Monday a federal judge said the answer was yes.

Judge Colleen Kollar-Kotelly of Federal District Court in Washington ruled that the State Department had acted correctly in withholding more than half of 23 classified diplomatic cables sought by the A.C.L.U. — all of which had been posted on the Web months earlier by WikiLeaks.

The A.C.L.U. filed what it acknowledged was a “mischievous” Freedom of Information Act request in an effort to force the government to acknowledge counterterrorism operations that it had refused to discuss on secrecy grounds and that were mentioned in the cables. The State Department, acting as if the cables were still secret, withheld 12 of the 23 cables completely and released 11 with some redactions.

The judge ruled, in effect, that a document remains classified until it is officially declassified by the government, even if it has become public through unofficial channels.

“No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgment” that the documents are authentic, Judge Kollar-Kotelly wrote. She said the A.C.L.U. had failed to show that State Department officials had confirmed that the cables posted on the Web by WikiLeaks were real.

Ben Wizner, director of the A.C.L.U.’s speech, privacy and technology project, said the court’s decision would “leave many Americans scratching their heads, and rightly so.”

He noted that the 23 cables had been “published throughout the world” and that the military was prosecuting Pfc. Bradley Manning, an Army intelligence analyst accused of providing them to WikiLeaks. By endorsing the government’s “legal fiction” that the documents remain classified, Mr. Wizner said, the court “does further damage to the government’s credibility and undermines the legitimacy of any future government claim of secrecy.”

© 2011 The New York Times Company

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