The Most Transparent Administration in History Strikes Again

The Most Transparent Administration in History Strikes Again July 31, 2012

Yet another example of the Obama administration — you know, the promised “most transparent administration in history” — using legal procedures to fight against actual transparency in court. A court has allowed them to continue to pretend that documents that were already made public are still so secret that they are not subject to the Freedom of Information Act. The ACLU reports:

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. Thegovernment 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 additionalharms 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.

So why does this matter, if the documents are already available? It matters because the ACLU is trying to show what the government works so hard to conceal when they redact documents, which is important in showing how dishonest the government is when they redact and when they reject many legitimate FOIA requests on national security grounds. This is quite similar to what both the Bush and Obama administrations did in the Al Haramain case, where they initially turned over a document that proved that the organization had been the target of illegal warrantless wiretaps, then argued that even though that document had been turned over, it was still secret and everyone had to pretend it didn’t exist and the group could not use it in court to establish standing.

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