TO STATE DEPT., WIKILEAKS OR NOT, SECRETS ARE SECRETS
By Scott Shane
New York Times
December 8, 2011
WASHINGTON -- The quarter-million confidential State Department cables obtained by WikiLeaks last year have been public on the Web for months. But don’t tell the government. It is pretending otherwise.
Asked in April by the American Civil Liberties Union under the Freedom of Information Act for copies of 23 cables on Guantánamo, rendition, and other matters, the State Department responded as if the confidential documents were still confidential.
Twelve of the cables “must be withheld in full” because they are classified as secret or contain important information, Alex Galovich, of the department’s Office of Information Programs and Services, wrote to the ACLU on Oct. 21. The other 11, he concluded, “may be released with excisions.”
The accompanying documents were indeed carefully redacted -- here a sentence is removed, there a whole page. But the ambassadors’ confidences that the department was intent on protecting are, meanwhile, just a click away for anyone interested.
Ben Wizner, litigation director for the ACLU’s national security project, said the group’s request for documents that were already public was “mischievous” but also had a serious point: forcing the government officially to acknowledge counterterrorism actions that it has often hidden behind a cloak of classification.
“In part the request was to expose the absurdity of the U.S. secrecy regime,” Mr. Wizner said. But he said the government had repeatedly blocked lawsuits challenging counterterrorism programs by invoking what is called the state secrets privilege and telling judges that allowing the cases to proceed would endanger national security. “The only place in the world where torture and rendition cannot be discussed is U.S. courtrooms,”he said.
Both the State Department and the Justice Department declined to comment, saying the ACLU’s request is still in litigation. In the past, government officials have said that they do not recognize the leak of classified material as the legal equivalent of declassification, so they must continue to treat it as classified.
In the case of WikiLeaks, the Obama administration has responded aggressively to the disclosures: Pfc. Bradley Manning, the Army intelligence analyst accused of supplying documents to the anti-secrecy group, faces a possible life sentence if convicted. A grand jury in Virginia is investigating whether WikiLeaks activists violated the law in obtaining and publishing secrets, though no such prosecution has ever succeeded.
The ACLU flap is only the latest conundrum posed by the growing category of public-but-classified information. The Central Intelligence Agency’s drone attacks on militants in Pakistan are ostensibly secret but widely discussed. Government censors have redacted commonplace information from American counterterrorism officers’ memoirs, saying it is technically classified.
Of course, by redacting passages the public is free to read, the State Department has called attention to what it considers the most diplomatically touchy parts of cables. At a glance, its reasoning is not obvious.
Excised from a 2010 cable from Luxembourg about a visit from Moazzam Begg, a British former detainee at Guantánamo Bay, Cuba, is an American diplomat’s view that Mr. Begg was “doing our work for us” by trying to persuade European countries to take more Guantánamo inmates.
Nearly all of a 2008 report from London on unsurprising “pessimistic” British government views on Pakistan is redacted. A 2009 cable from Madrid, about human rights advocates seeking an indictment of six former American officials for approving torture, took out a remark critical of Baltasar Garzón, a Spanish judge known for going after high-profile foreign targets. “Garzon has a reputation for being more interested in publicity than detail in his cases,” said the sentence the State Department cut, perhaps in the hope that the gesture -- however symbolic -- might ease the offense to the judge.
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THE U.S. NATIONAL SECURITY SMOKESCREEN
By Nancy Goldstein
** The State Department response to the ACLU's FOIA requests for WikiLeaks' cables reveals the absurd abuses of state secrecy **
December 7, 2011
Ben Wizner, the litigation director for the ACLU's national security project, cheerfully admits that its April 2011 Freedom of Information Act (FOIA) request for 23 of the very same U.S. State Department diplomatic cables we all read this time last year, when WikiLeaks released them to five newspapers including the Guardian, was "cheeky" -- a way to foreground the "absurdity of the US secrecy regime."
And so it has. Nearly eight months after the original FOIA request, the State Department has finally released … 11 cables. Federal censors have helpfully redacted them, making it easy to see, by a simple act of comparison (which the ACLU performs for us, here), precisely which sections the State Department wants hidden. Missing are a dirty dozen cables the government refused to release -- despite those cables having already been leaked, published and analysed in virtually every major national and international media venue -- again, because they were classified as secret or deemed to contain sensitive information.
Administration officials unleashed plenty of hyperbole and hysteria when the cables were first published. But it turned out that none of the information in them actually endangered American citizens, allies, or informants. They did, however, prove embarrassing for the US and many foreign leaders. Because it turned out that claims about national security were often an excuse to prevent us from seeing our government engaged in unethical, unconstitutional, and, sometimes, illegal practices. These ran the gamut from extraordinary renditions, detentions, and torture to shaking down other governments in an attempt to influence their political processes and tamper with their criminal justice systems.
We learned that the same Obama administration that had refused to pursue the perpetrators of the Bush torture regime at home had also tried to put its thumbs on the scales of justice in Spain -- aggressively attempting to prevent a counter-terrorism judge from trying the senior legal minds of the Bush administration for their part in the torture of detainees at Guantánamo Bay.
We learned about the U.S. attempt to scuttle the case of German citizen Khaled el-Masri, the greengrocer mistaken for a senior al-Qaida official. He was kidnapped, tortured, drugged, beaten, and thrown into Afghanistan's CIA-run Salt Pit prison, until -- oops -- they realized they had the wrong guy and dumped him in the Albanian outback. In public, Munich prosecutors issued arrest warrants for 13 suspected CIA operatives involved in his abduction and torture, and Angela Merkel's office called for an investigation. In private, the German justice ministry and foreign ministry both made it clear to the U.S. that they were not interested in pursuing the case, emboldening the U.S. to refuse to arrest or hand over the agents.
If the first part of the ACLU's agenda in asking for the 23 already-leaked cables is to highlight what it calls a "penchant for excessive secrecy in defiance of all reason," the second is to spotlight the way in which the Bush and Obama administrations abuse the state secrets privilege to keep illegal programs from being judicially reviewed.
When the ACLU challenged the CIA on behalf of el-Masri in 2005, a judge dismissed the case. The U.S. government did not deny that he was wrongfully kidnapped. Instead, it successfully argued that his case be dismissed because litigation of his claims would expose state secrets and jeopardize American security. This despite the fact that, as el-Masri pointed out, "President Bush has told the world about the CIA's detention program, and even though my allegations have been corroborated by eyewitnesses and other evidence."
First the Bush administration and then the Obama administration successfully evoked the state secrets privilege to prevent the ACLU from filing a federal lawsuit against Jeppesen DataPlan, Inc, the folks who helped the CIA fly extraordinary rendition victims to secret sites where they were detained, tortured, and interrogated. Again, the government claimed that further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. And again, it appears to have won.
In the hall of mirrors that the U.S. security regime has become, information that is not officially acknowledged cannot be used to hold government officials responsible in the courts. And an administration that can evade charges of misconduct, including torture, by hiding behind state secrets claims, even when all the details are publicly known, becomes the guardian of its own liability. That's bad news.
Transparency and accountability are the oxygen of democracy. But don't hold your breath waiting for this administration to respond to requests for either one.
Blog of rights
SECRECY WITH SENSE: STATE DEPARTMENT CENSORS CABLES ALREADY PUBLISHED BY WIKILEAKS
By Nathan Freed Wessler and Anna Estevao
December 7, 2011
The government’s latest response to the WikiLeaks saga reveals its penchant for excessive secrecy in defiance of all reason. Today the ACLU made public eleven documents released by the State Department in response to our Freedom of Information Act (FOIA) request and lawsuit seeking twenty-three embassy cables that had been previously disclosed by WikiLeaks and widely distributed online and in the press.
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. Although the State Department has stated that the cables released by WikiLeaks are classified government documents, it has consistently refused to confirm the authenticity of any particular cable. But now, for the first time, the government has finally acknowledged that the WikiLeaks release contains authentic State Department cables. The government has released partially redacted versions of eleven cables, and withheld twelve in full.
Frankly, we’re astonished by the government’s response. The cables released by WikiLeaks are available to anyone with an internet connection and a passing interest in U.S. foreign policy. But the government has spent the last year insisting, over and over, that the WikiLeaks cables are still classified, going so far as to forbid certain government employees from accessing them and interrogating a State Department employee who linked to one of the cables from his personal blog. Now, the State Department has reversed course and acknowledged that at least some of the cables can be released to the public without harming national security. That’s what we’ve been saying all along (and, according to reports, what some government officials have been saying too).
The State Department’s response is particularly astounding because it reveals a roadmap of the government’s classification decisions. The information released by the State Department is perhaps more sensitive than the cables themselves, revealing what the government thinks the public should and should not be able to see. The government redacted significant portions of the eleven cables it released to us. But because WikiLeaks has already published the full text of each cable, we know what’s underneath those redactions. On our WikiLeaks Diplomatic Cables FOIA webpage, you can see how the State Department has claimed the authority to conceal information that is embarrassing to or critical of the government, like criticism of the CIA’s black-site prison program and treatment of Guantanamo detainees, while releasing information that paints the U.S. in a positive light. The government also redacted multiple passages containing information that has long been publicly available, such as the fact that Italian prosecutors alleged that a U.S. military jet traversed Swiss airspace on the day the CIA kidnapped cleric Abu Omar from Milan. That’s hardly a secret, since two years ago an Italian court convicted 23 Americans, most of them CIA operatives, of taking part in Abu Omar’s abduction and rendition flight from Italy to Germany and on to Egypt (where he was tortured). At its most harmless, their selectivity reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.
And then there are the "dirty dozen" -- twelve cables that the State Department withheld in full. What is it they don’t want the public to see? Allegations that a former detainee sustained an injury during interrogation at Guantánamo, mention of the tension created between the U.S. and the British and Irish governments over those countries’ disapproval of the U.S. government’s extralegal rendition flights, an account of the Yemeni government’s role in facilitating U.S. airstrikes in Yemen, an explanation of why torture at Abu Ghraib made the United States less secure, and a description of pressure brought by the U.S. government on Germany to prevent Germany from holding the U.S. accountable for kidnapping, torturing, and secretly detaining German citizen Khaled El-Masri. All of these cables describe issues of widespread public concern, so what’s the point of withholding them but not the others?
Even if there was ever reason to think that the disclosure of this publicly available and widely reported information would harm national security, there most certainly is none now. Clearly, any damage to foreign relations or the nation’s image was already sustained when the cables were leaked. In releasing these cables, the State Department went through the charade of redacting already-published text, showing just how committed they are to secrecy for secrecy’s sake. They hide behind a security regime that pretends to be blind and deaf, maintaining that if they say something is secret, people don’t actually know it. This twisted logic defies reason and serves the government’s desire to only be held accountable for information and actions they choose to admit.
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