Court Says State Department Can Live In Fantasyland & Pretend Documents Leaked By Wikileaks Are Still Secret

from the head-in-sand-approach dept

We’ve talked about the problem in which classified documents that are leaked and widely available to the public are still considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren’t allowed to look at these documents — which anyone else in the world can see — which relate to their clients. Even the NY Times called this situation “absurd.” And it is. In the business world, people commonly sign “non-disclosure agreements,” but they’re always considered null and void if that same information becomes public by other means. It’s bizarre that the government doesn’t recognize the same policy.

However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It’s as if everyone is actively denying reality.

The ACLU relied on the part of the test that questions whether the disclosure of the information “reasonably could be expected to result in damage to national security.” Seeing as anyone seeking to “damage” our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you’d think that the ACLU’s argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should “defer” to the judgment of the administration on this question, and that it’s possible that the official release of these documents could impact national security. I don’t buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new “threat” involved just doesn’t pass the laugh test.

What’s most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse — and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.

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Comments on “Court Says State Department Can Live In Fantasyland & Pretend Documents Leaked By Wikileaks Are Still Secret”

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61 Comments
Mr. Smarta** (profile) says:

Perfectly reasonable

Sure. What you’re seeing isn’t actually real. You see, we actually live in The Matrix. And everything is merely impulses in the brain. And when we read something, it’s not actually there. When someone commits an act of copyright infringement, they didn’t really do it because whatever they downloaded/uploaded doesn’t really exist.

So logically, if something is classified and released to the world for all to read, the government then has the authority to say that the ‘something’ out there isn’t really out there, and is therefore still classified. This argument might work for judges who may have a Swiss bank account being funded by *AAs or pharma companies. They don’t actually exist, and so therefore aren’t really there. But in reality, those aren’t there. They don’t exist. It’s not real. Nothing is real. It’s all made up.

Seems perfectly reasonable to me… or maybe I’m just smoking the same weed the government is. (NOTE: I don’t really smoke weed. It doesn’t exist so it’s not there and I don’t do it.)

Anonymous Coward says:

I think it is more you that is living in a sort of fantasy land. The information may be out there in some manner, but that manner is considered illegal, and someone is awaiting trial on the very methods by which this was released.

It’s weird if you phrase it your way, because you fail to understand that the copy wikileaks has is effectively illegal.

Mason Wheeler (profile) says:

Re: Re:

The point is that it doesn’t matter whether or not it’s legal–and for the record, I agree with you that what WikiLeaks did was highly illegal and it needs to be treated that way.

But that’s not the point here. The point isn’t that the leak was illegal, it’s simply that the leak was. The material is no longer secret in any meaningful way, and whether or not that should be true, it is true and trying to act as if it is not is denying reality.

Ninja (profile) says:

Re: Re: Re:

Illegal? Really? They are only providing means for publishing material whistleblowers release. If anything, it’s the whistleblower that’s doing “illegal” stuff. But then you have the controversy around whistleblowing. Shouldn’t it be protected?

Also, I can understand the reasoning behind. If you keep considering the communication confidential the material released can or cannot be legitimate. I’m not quite sure Wikileaks can effectively prove that all the documents leaked are from official sources (although I believe most of them are).

Food for thought.

Anonymous Coward says:

Re: Re: Re:

so, applying the same logic, in that case it would be illegal for representatives of the us government to infiltrate a friendly third country (let’s say New Zealand, for example) and illegally copy the contents of a certain hard drive and ship it (via a private shipping company) into the US to be used as a bargaining chip/evidence in a certain trial… right?

so how come in one case the government argues it’s just fine to use illegal means to publish/move data while in a practically identical similar case but where the tables are reversed is it not fine?
how hypocritical can the US gov get?

(for those who don’t get it see the Megaupload harddrive cloning case case… this is practically a wikileaks in reverse… the us gov was the one doing the leak)

MrWilson says:

Re: Re:

The illegality of the act of the leak does not make the content of the documents untrue.

Lets say you were facing charges that carry a death sentence should you be found guilty and the only evidence that clears your name was released illegally. Would you refrain from trying to use that evidence to exonerate you or would you give up and allow yourself to unjustly be executed just because the leak was illegal?

Say it with me once again: Legality is not morality. Following the law is not always the right thing and breaking the law is not always the wrong thing.

Anonymous Coward says:

Re: Re: Re:

“The illegality of the act of the leak does not make the content of the documents untrue. “

Okay, exactly how do you prove that the documents are 100% true?

You can’t. The true secret documents may be different, they are certainly not redacted, etc.

Since the documents were obtained illegally, and there is no way to prove that they are authentic (except by violating state secrecy), then you are left with not much of anything – except that the government documents are still secret, and whatever was obtained illegally is not verified to match (and there is no way to do it legally)

MrWilson says:

Re: Re: Re: Re:

“(and there is no way to do it legally)”

Um…The government can declassify the documents. That’s legal and the whole point of this.

Public officials have acknowledged that the leaks in general are valid. Why would the military be trying Bradley Manning for leaking sensitive documents if he didn’t actually leak anything? If the leaks were forgeries, the government would have nothing to lose in just coming out and saying, “ha, those are fake!” Instead, it’s wringing its hands about how bad the leaking is and trying to get its hands on Julian Assange.

Anonymous Coward says:

Re: Re:

You are utterly missing the actual point: the government refuses to authenticate leaks. If the information is declassified post-leak, that tacitly confirms the information is genuine.

This has absolutely nothing to do with the information being released illegally; Guantanamo defendants are disallowed from using it because the government refuses to admit whether any given document is genuine.

Please do not make arguments about what you have utterly no understanding of.

Mike Masnick (profile) says:

Re: Re:

Citation needed.

Seriously? I take it you’ve never actually worked in business. It’s completely standard.

Just look at ANY NDA. Here are a couple samples:

http://www.hbs.edu/entrepreneurship/pdf/Sample_NDA.pdf

“Notwithstanding anything in the foregoing to the contrary, Confidential
Information shall not include information which… is or becomes publicly available through no
fault of or failure to act by the Receiving Party in breach of this Agreement”

http://www.ndasforfree.com/NDAS/GetBasic.html

“Receiving Party’s obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party…”

Every NDA I’ve ever been party to has included something along those lines.

Anonymous Coward says:

Reality

It’s as if everyone is actively denying reality.

Wikipedia: Reality-based community

The aide said that guys like me were ?in what we call the reality-based community,? which he defined as people who ?believe that solutions emerge from your judicious study of discernible reality.? I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ?That’s not the way the world really works anymore,? he continued. ?We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.?

?We create our own reality.?

Anonymous Coward says:

The ACLU relied on the part of the test that questions whether the disclosure of the information “reasonably could be expected to result in damage to national security.” Seeing as anyone seeking to “damage” our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you’d think that the ACLU’s argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should “defer” to the judgment of the administration on this question, and that it’s possible that the official release of these documents could impact national security. I don’t buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new “threat” involved just doesn’t pass the laugh test.

The judge applied the law, which is what judges do. The judge didn’t work backwards, which is all you ever do. Can you actually demonstrate how the judge misapplied the law, or are you just whining–again?

Digitari says:

Re: yes I can show it

In the Military (35 years ago) it was SOP to declassify any and all documents that have been made public.

It was part of my Job to go through Documents in the classified files and restamp them “unclassified”, are you implying that Pres Reagan was a lefty or something??

this was and always has been the SOP for classified documents going back to WWII

Dunno why it would be different now, find a classified Message clerk and ask to to see the (unclassified) SOP

Cory of PC (profile) says:

It’s as if everyone is actively denying reality.

So, are these politicians some kind of reality warpers? Are they trying to deny (when I read it, I thought it was ‘defied’) reality by making it where they get the court to rule in their favor and have them continue to live in this fantasy land?

… Must be a nice place to live in.

Yakko Warner (profile) says:

Plausible deniability?

Is there any guarantee that the information published by Wikileaks is legitimate? How do you really know that a document on Wikileaks isn’t some manner of forgery? If the actual documents are declassified, then you have a way to prove (or disprove) the Wikileaks document’s truthfulness. But if the original remains “classified”, all you really have is a situation where some random, unverified document makes an accusation of the truth, which still needs “proof”.

Maybe they’re just trying to retain their “nuh-uh, prove it” defense to “he said you were doing this”.

New Mexico Mark says:

Hmmmm

The only justification I can see for this type of behavior is that of officially confirming leaked information vs. leaving it ambiguous. It’s a little like the “we can neither confirm nor deny the presence of nuclear weapons” on certain U.S. Navy vessels. Everyone knows the real answer, but without an official answer, there is some doubt.

In the case of a classified release, it would be difficult to prove electronic documents had not been tampered with prior to or even after release. I guess if they were released with a hash, you could verify no changes subsequent to release, but not prior. Deliberate disinformation, anyone?

I seriously doubt this is the case with Wikileaks, and I think a better “cover up” strategy would be to keep the official documents classified and treat the Wikileaks documents there as if they didn’t matter. In fact, government reactions so far seem to lend the most weight to the authenticity of the leaked documents. Unless there’s a lot we don’t know, it really looks like this has been handled incompetently from the start.

Machin Shin (profile) says:

Re: Re: Re: Re:

You don’t have to sell your soul to run for president, now to win….. yeah probably do have to sell soul to win.

I always thought it would be nice though if someone would run for President and be brutally honest. Just stand up and say “I don’t give a fuck what the public wants I’m going to go do what the fuck I want”. I think I would probably vote for him. Be refreshing to at least have a guy who is honest about it.

Tim Griffiths (profile) says:

Re: Re:

Ya who needs an free press and an informed public in a democracy. People who spend time understanding a given set of issues should only ever, instead of trying to inform the public…. oh wait, if the public is no informed or aware of the issues their platform is based on and has no sources other than a person who is running that platform to become informed about those issues they are not going to be able to make an informed voting decision and as such the platform is undermined.

In other words Mike is doing something about it and if you don’t understand what that is or why it’s important then you are less a troll and more a silly uniformed dumb ass.

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