Keeping Public Documents Secret

The Obama administration is requiring Guantánamo detainees’ lawyers to treat the documents setting forth the government’s erstwhile assessment of the detainees as they would treat any other classified documents – even though the documents were recently made public by virtue of an unauthorized disclosure to WikiLeaks.

April 28, 2011

The Obama administration is requiring Guantánamo detainees’ lawyers to treat the documents setting forth the government’s erstwhile assessment of the detainees as they would treat any other classified documents – even though the documents were recently made public by virtue of an unauthorized disclosure to WikiLeaks.  In other words, according to New York Times reporter Scott Shane, the lawyers “are obligated to treat the readily available files ‘in accordance with all relevant security precautions and safeguards’ – handling them, for example, only in secure government facilities.” 

This isn’t the first time George Orwell has paid a visit to this country’s information security system.  As Shane reports, “[O]nly a document that is properly declassified loses its protections.”  Accordingly, despite the widespread availability of the various documents obtained and released by WikiLeaks in recent months – not to mention the public’s familiarity with their contents after a steady stream of news reports – the following restrictions on their use have been proposed or implemented:

In December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chance of getting a government job.  The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment.  In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home. . . . A Times reporter who appeared with a State Department official on a recent panel was advised not to show leaked cables as slide – the official was prohibited from looking at them.     

The policy of requiring government employees and authorized clearance holders to ignore the public availability of leaked documents is not merely ridiculous (although it is that); it is a pernicious abuse of the classification system.  The executive order that governs classification allows officials to classify information only if its disclosure could reasonably be expected to harm national security.  Needless to say, there is no national security justification for attempting to control information that is already squarely in the public domain.  To the extent our enemies can use the information, they already have it; the only people who are inconvenienced by the government’s policy are the government’s own employees and others with authorized access, who must play along with the pointless fiction that the information remains secret.

The government’s justification for this nonsensical state of affairs, as described by Professor Peter J. Spiro in Shane’s article, is as follows:  “[I]f the government ruled that classified documents disclosed to the public were automatically declassified, that would simply create a more powerful incentive for disgruntled employees to leak.” But the justification is itself nonsensical.  Whistleblowers and others who leak government information want that information to become front page news; they couldn’t care less whether authorized clearance holders are officially prohibited from viewing or discussing those news stories.  

A far more plausible explanation for the government’s policy – one that is grounded in bureaucratic politics rather than national security considerations – is the government’s desire to retain control over how certain information is used and portrayed in the public domain.  For example, as one of the detainees’ lawyers pointed out, decisions about what to do with various detainees (such as the Uighurs) have been influenced by public pressure as much as by legal standards.  Accordingly, “it’s important to be able to use these documents to shape and inform the discussion the public square.”  The government’s policy prevents the detainees’ lawyers from using the information revealed by the documents to appeal to the public.

This explanation is all the more plausible when one considers what lay behind the decision to classify many of these documents in the first place.  At least 150 of the detainee assessments concluded that the detainees were not “enemy combatants” or otherwise suspected of anti-U.S. terrorist affiliations.  Far from relying on sensitive intelligence sources or methods to reach this conclusion, dozens of these assessments found that there was simply “no reason recorded” for the individual’s transfer to Guantánamo.  There is no legitimate national security justification for classifying such information.  It was classified so that the government could continue arguing that Guantánamo contained “the worst of the worst,” without the inconvenience of having to address the evidence to the contrary.  Like so many other classified documents, it was classified to prevent public discourse from becoming an obstacle to government policy.

The government should never be allowed to classify information, or prevent its declassification, for any reason other than to protect national security.  The President should amend the executive order governing classification to require immediate and automatic declassification of any classified information that has entered the public domain, regardless of how it gets there.  More generally, the classification system must be reformed to require more careful consideration of classification decisions and to implement a measure of accountability for officials who misuse the system.  The administration should focus its resources on this problem – not on “protecting” information that is available to anyone with a newspaper subscription, television, or internet connection.