By SCOTT SHANE, Published: December 7, 2011
WASHINGTON — The quarter-million confidential State Department cables obtained by WikiLeaks last year have been public on the Web for months. But don’t tell the government. It is pretending otherwise.
Asked in April by the American Civil Liberties Union under the Freedom of Information Act for copies of 23 cables on Guantánamo, rendition and other matters, the State Department responded as if the confidential documents were still confidential.
Twelve of the cables “must be withheld in full” because they are classified as secret or contain important information, Alex Galovich, of the department’s Office of Information Programs and Services, wrote to the A.C.L.U. on Oct. 21. The other 11, he concluded, “may be released with excisions.”
The accompanying documents were indeed carefully redacted — here a sentence is removed, there a whole page. But the ambassadors’ confidences that the department was intent on protecting are, meanwhile, just a click away for anyone interested.
Ben Wizner, litigation director for the A.C.L.U.’s national security project, said the group’s request for documents that were already public was “mischievous” but also had a serious point: forcing the government officially to acknowledge counterterrorism actions that it has often hidden behind a cloak of classification.
“In part the request was to expose the absurdity of the U.S. secrecy regime,” Mr. Wizner said. But he said the government had repeatedly blocked lawsuits challenging counterterrorism programs by invoking what is called the state secrets privilege and telling judges that allowing the cases to proceed would endanger national security. “The only place in the world where torture and rendition cannot be discussed is U.S. courtrooms,”he said.
Both the State Department and the Justice Department declined to comment, saying the A.C.L.U.’s request is still in litigation. In the past, government officials have said that they do not recognize the leak of classified material as the legal equivalent of declassification, so they must continue to treat it as classified.
In the case of WikiLeaks, the Obama administration has responded aggressively to the disclosures: Pfc. Bradley Manning, the Army intelligence analyst accused of supplying documents to the anti-secrecy group, faces a possible life sentence if convicted. A grand jury in Virginia is investigating whether WikiLeaks activists violated the law in obtaining and publishing secrets, though no such prosecution has ever succeeded.
The A.C.L.U. flap is only the latest conundrum posed by the growing category of public-but-classified information. The Central Intelligence Agency’s drone attacks on militants in Pakistan are ostensibly secret but widely discussed. Government censors have redacted commonplace information from American counterterrorism officers’ memoirs, saying it is technically classified.
Of course, by redacting passages the public is free to read, the State Department has called attention to what it considers the most diplomatically touchy parts of cables. At a glance, its reasoning is not obvious.
Excised from a 2010 cable from Luxembourg about a visit from Moazzam Begg, a British former detainee at Guantánamo Bay, Cuba, is an American diplomat’s view that Mr. Begg was “doing our work for us” by trying to persuade European countries to take more Guantánamo inmates.
Nearly all of a 2008 report from London on unsurprising “pessimistic” British government views on Pakistan is redacted. A 2009 cable from Madrid, about human rights advocates seeking an indictment of six former American officials for approving torture, took out a remark critical of Baltasar Garzón, a Spanish judge known for going after high-profile foreign targets. “Garzon has a reputation for being more interested in publicity than detail in his cases,” said the sentence the State Department cut, perhaps in the hope that the gesture — however symbolic — might ease the offense to the judge.