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Government Wins Right to Pretend That Cables Released by WikiLeaks Are Still Secret

Government Wins Right to Pretend That Cables Released by WikiLeaks Are Still Secret

By Nathan Freed Wessler, Fellow, ACLU National Security Project at 12:28pm

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.

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.

Several months ago, the ACLU created a feature allowing the public to compare the redacted cables released by the government to the full text disclosed by WikiLeaks. By hovering your mouse over the government’s redactions, you can see what the State Department is still attempting to conceal. But beware: under the logic of the court’s ruling today, every time you uncover the government’s “secret” text, you are somehow causing harm to national security. This argument just doesn’t hold up, as detailed in this New York Times article from last December. Whatever damage to the reputation of the United States may have occurred when the cables were first disclosed, no more harm can come from releasing identical text of the cables again now. In fact, it is the court’s ruling that causes harm, by frustrating the Freedom of Information Act’s promise of transparency and making a mockery of the concept of legitimate secrecy.

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