Pretending WikiLeaks Doesn’t Exist: Government Secrecy Reaches Absurdity

Yesterday, the ACLU filed a lawsuit after the State Department failed to respond to a Freedom of Information Act (FOIA) request seeking the declassification of 23 State Department cables disclosed by WikiLeaks and widely disseminated online and in the press. The cables we seek reveal the diplomatic cost of policies that the Bush and Obama administrations have tried to keep secret from the American public.
Several of the cables describe high-level efforts by the government to pressure Spain and Germany into dropping investigations of the CIA's torture of detainees. The cables show that the U.S. expended significant diplomatic resources in order to try and guarantee impunity for officials responsible for the abduction and torture of victims including Khaled El-Masri, an entirely innocent German citizen. At home, the Bush and Obama administrations have invoked legal fictions such as the "state secrets" privilege to prevent U.S. courts from addressing cases of innocent people tortured and rendered by the CIA; these cables reveal the secret ways in which the government worked to defeat accountability abroad. We believe the American people have a right to know about the government's efforts to shield from liability those officials who violated domestic and international law by engaging in abduction, rendition, and torture.
Other cables requested by the ACLU reveal the government's paradoxical efforts to coordinate the resettlement or prosecution of Guantánamo detainees in foreign countries, even as the United States refused to resettle or prosecute those same detainees in the U.S. Still other cables describe the strains on our relationships with other countries caused by U.S. rendition flights and drone strikes. This information should never have been secret in the first place. Its continued classification illustrates how the government all too often uses secrecy not to enhance national security, but to hide embarrassing and difficult facts from the public.
In spite of the cables' widespread availability, the government has continued to maintain that documents released by WikiLeaks and published by national and international newspapers are classified. The government's decision to cling to a legal fiction rather than conform its secrecy regime to reality has led to absurd consequences. Congressional Research Service (CRS) analysts are blocked by the Library of Congress from using these widely available documents, even as Congress relies on CRS reports to inform new legislation. The Air Force blocked the entire websites of the New York Times and other major media outlets that posted the leaked cables. Perhaps the most troubling consequence of the government's adamant refusal to incorporate common sense into its secrecy regime is that lawyers for Guantánamo detainees have been barred from reading or discussing leaked documents concerning their clients, even though these documents are posted on the websites of major national and international newspapers and available to anyone in the world. The government has gone so far as to claim it is unable to comply with a court order that it provide guidance to lawyers representing Guantánamo detainees regarding how the lawyers may use those documents that are already publicly available.
The ACLU's lawsuit comes on the anniversary of another famous leak. On Monday, June 13, 2011, the United States will release the declassified Pentagon Papers — 40 years after they were first leaked. The fact that for 40 years after their original release the government maintained the pretense that release of the Pentagon Papers would cause damage to U.S. national security shows just how divorced from reality the U.S. approach to secrecy has become. Americans should not have to wait 40 more years for the government to declassify vital information that the whole world is already discussing.
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