Jurist reports
Government watchdog group Project on Government Oversight (POG0) filed suit against Attorney General John Ashcroft Wednesday over the reclassification of documents relating to a whistleblower's claims of security lapses in the FBI's translator program. POGO argues that reclassifying documents that were previously in the public domain is illegal and unconstitutional. During testimony before the Senate Judiciary Committee earlier this month, Ashcroft took responsibility for the decision to classify the documents, citing US national interests. AP has the full story. POGO provides background on the retroactive classification.
I had thought the question of classifying public domain information was settled long ago in the 'classified at birth' debate, when the government climbed down from its assertion that some scientific discoveries with military implications (e.g. strong cryptography or strong decryption methods) could be classified even if derived entirely from non-classified sources by persons unaffiliated with the government.
The seemingly technical question of the government's ability to classify public information is in fact very important. If Ashcroft were to get his way, the government would have the ability to shut down debate on a set of public policy issues by waving a classified stamp. That would take us another (not-so-little?) step in the direction of authoritarian government.
I’m not wholly sure that this is analogous to the “classified at birth” debate about cryptography. My impression reading the POGO website was that nowhere in the public domain, as of now, is there actually a copy of what Ms Edmonds said before Congress. Rather, POGO is attempting to have the fact that the information was once unclassified used to prevent the government from keeping her from testifying in a civil case. This isn’t quite the same situation as, say, threatening prosecution of someone who obtained the unclassified Edmonds testimony and now wants to republish it. Unless I’m missing something …
Ok … this doesn’t make sense to me. Here POGO claim that they have the letters making reference to Edmonds’ testimony removed from the websites of Senators Leahy and Grassley after that testimony was retroactively classified. But they haven’t published them. Why not? Even if the information were now legitimately classified, they wouldn’t, as far as I can see, be in any danger of prosecution for doing so – the information doesn’t fall within any of the categories whose disclosure is punishable by law. 18 USC 798 applies only to cryptography and COMINT information; 42 USC 2277 applies only to government officials with security clearances, not to journalists/NGOs; obviously the statutes about espionage, intelligence agents’ identities, and atomic energy information don’t apply.
The AP story says, “The group has been investigating Edmonds’ allegations and wants to post its findings on its Web site, but is barred from doing so now because of the reclassification, Brian said.” quoting Mr. Brian, an official with the independent watchdog, POGO.
I am curious about how or why classification implies any restraint on a private organization. Last time I checked, the first amendment bars any kind of “Official Secrets Act” such as the British have. If I, a private citizen and not an employee or government contractor, happen to have a “classified” document, and I choose to share that with the world, it is pretty much tough noogies, as far as Ashcroft’s Justice Department is concerned. “Classification” can include no restraint on anyone, who comes into possession of “classified” documents legitimately and who has no contractual obligation to the government to respect “classification.”
Any other legal doctrine is pure bullshit.
Brian,
My point exactly (although, as I pointed out, there are a few very narrow statutory exceptions to this, although as far as I know none have ever been successfully used to punish publication). I can only assume that by claiming that they’re being prevented from disclosing the documents, they have a better chance of gaining standing to challenge the whole classification order. Although I don’t see how that would affect Edmonds’ testimony in the civil case that seems to also be involved. Does anyone have a clearer picture of this?
I am the Director of Communication at the Project On Government Oversight (POGO) and wanted to answer a few questions here. Congressional letters concerning Ms. Edmonds are still posted on the web. Once something has been posted on the web it is virtually impossible to retrieve as caches run by Google, various databases, and other web sites save these pages. Her letters are also included in court filings which are a matter of public record. As a result, the government will likely fail to demonstrate that the information is retrievable, one of the standards that must be met to reclassify information. Lifting the reclassification is important not only for POGO’s free speech but the free speech of Senators Grassley and Leahy and other members of Congress who are unable now to speak publicly about information from the FBI’s congressional briefings on Ms. Edmonds’ case. Muzzling Ms. Edmonds’ Congressional advocates is clearly an effort to isolate and silence her concerning her whistleblower concerns. Members of Congress surely would not want to be tarred with accusations that they disseminated classified information.
While POGO certainly could have chosen to post the classified letters on our web site, doing so would have invited an investigation by the FBI/Justice Department. This can of worms can lead to all kinds of harrassment. Several years ago, the Air Force retroactively classified a document POGO possessed The document forced the Air Force to admit the existence of Area 51. In retaliation, the Air Force demanded possession of all of our files, claiming our possession of a classified document as a pretext. While we turned them down on their offer to take all of our files, we did expend quite a bit of energy dealing with lawyers, etc. I have helped to defend POGO from other such retaliatory government “investigations” or threats and they are often not fun, no matter how righteous your cause is.