Yesterday was a bad day for government secrecy. As Marcy Wheeler first reported, the prosecution of whistle-blower Thomas Drake over his leaking information about waste and lack of privacy safeguards in the NSA's surveillance programs fell apart, with Drake agreeing to a plea deal that leaves him guilty of only the misdemeanor charge of "exceeding authorized use of a computer." The government had sought to prosecute him as a spy under the Espionage Act, as well as charging him with lying to investigators and obstruction of justice. This isn't just embarrassing for the Justice Department; it also undermines the Obama administration's entire aggressive campaign of dissuading leaks by prosecuting whistle-blowers as spies.
Yesterday, the ACLU also filed a mischievous lawsuit against the State Department for refusing to comply with Freedom of Information Act requests made two months ago regarding WikiLeaks cables that had already been published by news organizations. Wheeler also put up a list of the cables themselves, which are interesting in that they're all related to indefinite detention, covert action, interrogation, targeted killing, and the U.S. efforts to prevent European investigations of torture and rendition cases.
The suit leaves the government in an awkward position in how to respond. They'd look silly if they argue that the cables are still classified and so can't be released, because they've been released. If they declassify the cables they empower more potential leakers to come forward with classified information they believe to be in the public interest. If they release the cables with lots of redactions, they allow journalists to compare them to the already released and unredacted cables and therefore get a sense of what information the government thinks needs to be kept secret.
Then there's this part of the lawsuit, which relates directly to the prosecution of alleged leaker Bradley Manning:
On March 1, 2011, the Department of Defense (“DOD”) issued a Charge Sheet
specifying charges under the Uniform Code of Military Justice (“UCMJ”) against Private First
Class Bradley E. Manning. The Charge Sheet included the allegation that Private First Class
Manning did “steal, purloin, or knowingly convert to his use or the use of another, a record or
thing of value of the United States or of a department or agency thereof, to wit: the Department
of State Net-Centric Diplomacy database containing more than 250,000 records belonging to the
United States government . . .
Basically, they're implying that to prosecute Manning for leaking information that was meant to be classified, the government has to confirm the authenticity of the cables, which, as Wheeler notes, they haven't done yet.
So no matter what the government does here, they run the risk of making themselves look ridiculous in an effort to maintain secrecy even after the information in question is already public knowledge. Which seems to be the point of filing a FOIA lawsuit for cables that are already public in the first place. Then again, if they'd just been responsive to the FOIA to begin with, none of this would be happening.
UPDATE: The ACLU's Dror Ladin*, in a blog post explaining his thoughts behind the lawsuit, writes that "the government all too often uses secrecy not to enhance national security, but to hide embarrassing and difficult facts from the public." *I initially mistakenly attributed the post to Ben Wizner.
