Ombudsman blog archive
A case for the Guantanamo exemption
Published: December 31, 2011
It has been a year now since the Defense Department announced restrictions on Stars and Stripes in the wake of the WikiLeaks affair, the epic breach of national security that this newspaper’s reporters and editors and nearly every other American alive had nothing to do with.
And yet they and a multitude of other Americans are being forced to pay the price by being told they must cede a measure of the most precious right after life itself — intellectual freedom.
Under a policy formulated by the Obama administration in November 2010 and fitfully applied over the next several weeks across the government, anyone in federal employ who reads or clicks without clearance on an ostensibly classified document of the sort WikiLeaks has put in the public domain may face a range of penalties, from reprimand to job loss to denial of security clearance to criminal charge.
That applies to the reporters and editors of Stars and Stripes, to members of the military, including reserves and ROTC cadets, to civil servants, federal contractors and, most ominously, anyone who aspires to be any of those.
Last December, according to The New York Times, Columbia University in New York City warned students that posting comments or links to WikiLeaks online could endanger prospects for federal employment. (The University later back-pedaled on that advisory in the name of academic freedom. But as I reported in February, the concern is legitimate.)
There are also reports that despite the separation of powers, congressional staffers are subject to the same restrictions because their work may require security clearances issued by the executive branch, to which the courts have granted broad authority over classified information. That has led to grumbling online that they cannot properly brief Congress if they are barred from consulting all publicly available information.
Only one group so far has won limited exemption — lawyers for detainees at Guantanamo. One attorney went to court in April to argue that in keeping with legal principle, he needed to be free to seek and consult all sources of information in the public domain that might be of use to his client’s defense, both in the court of law and the court of public opinion.
But the lawyer, David H. Remes, said he feared losing not only the security clearance he had been given to represent his client but also being prosecuted merely for clicking on an Internet document related to his client’s defense if it bore any indication of still being officially classified.
“The government holds all the cards,” he told the United States District Court in Washington.
The Justice Department responded in June by saying that defense lawyers could access the documents online from anywhere, so long as they made no copies or discussed or used them in a way that would publicly confirm their authenticity as genuine classified documents, as opposed to what the government calls “potentially classified information.” (Note: Thanks to the Federation of American Scientists for posting several of the original documents cited here.)
The core rationale, upheld by the courts over the years, is that only the government can declassify information. Someone’s leaking it to the press or public does not. Even placement in the Congressional Record does not declassify it, as the leaked 1971 Pentagon Papers showed.
Since a leaked document remains officially secret, anyone in government employ, or anyone who holds a security clearance, must legally continue to treat it as such, even if the entire world knows the contents, even if the document has not been acknowledged by the government as authentic. And as long as it is not acknowledged as authentic, the fig leaf remains in place that it may be a fabrication and thus officially deniable or ignorable.
Such was the case with the Pentagon Papers, which remained officially off-limits until they were formally declassified only this past June. That was 40 years after they entered the public domain via a leak and became a fixture on library shelves the world over, including at the Library of Congress and the military service academies, as I reported in February.
In October, several journalists, prominent members of professional organizations and First Amendment advocates joined me in a discussion with Defense officials on the WikiLeaks policy with regard to Stars and Stripes.
I provided the Pentagon with a copy of the Justice Department policy and asked that a similar exemption for Stars and Stripes be considered, in keeping with longstanding congressional and DOD directives that this news organization will operate both in keeping with established professional norms and with First Amendment press freedoms. (The DOJ policy is similar to an option I floated at the Pentagon last winter, without success.)
Although imperfect, the Guantanamo exemption, as applied to Stars and Stripes editorial employees, would be better than what is in force now. They could feel free to check information gathered in reporting or editing against primary sources in the public domain, like the WikiLeaks documents, something journalists anywhere else feel free to do (so long, I suppose, as they don’t ever aspire to government service).
Here’s an example: An editor has a story from The Associated Press referencing a WikiLeaks document described as classified. This is something Stars and Stripes is allowed to publish under its charter, Defense Department Directive 5122.11.
But a quote, say, appears garbled, missing a word. An editor anywhere else would simply go online, search out the source document, check it against the AP copy and proceed accordingly.
At Stars and Stripes, under current policy, that editor, as a federal employee — one, I emphasize, who holds no security clearance — would be officially forbidden from exercising this standard practice in fact-checking on behalf of the readers.
It’s worth noting that, unlike the Guantanamo defense lawyer, who has a security clearance and theoretically can check a WikiLeaks document against the real thing, Stars and Stripes journalists have no such privileged, discrete access to actual classified documents.
So the risk of their compromising classified information by confirming its authenticity — something the Justice Department expressed grave concern over with regard to the Guantanamo defense lawyers — is of no consequence. The source would be identified as WikiLeaks, not the United States government.
Over the last two months, I have made multiple requests to the Pentagon for an update on where things stand with regard to its review of the Justice Department exemption and its applicability to Stars and Stripes. I have to date received no substantive reply.
There’s an old military saw that goes, “We defend democracy, we don’t practice it.”
Despite some public misperceptions and its often testy parental relationship with the Department of Defense, which provides a partial subsidy under congressional authorization for non-editorial operations, Stars and Stripes is not the military and not an official organ of the government. It is an independent, autonomous, civilian-run, professional news organization and it needs the recognized freedom to operate as such to the maximum extent possible.
Congress and the Pentagon have pledged that Stars and Stripes will operate free of “censorship or news management” in the name of keeping military forces overseas up to speed on world events so that when they return home they can exercise their democratic franchise along with everyone else.
Officially forbidding Stars and Stripes journalists from consulting relevant information in the public domain is not just a professional inconvenience, it is an affront to the First Amendment and the right to know of its readers, who are asked to defend that right with their lives.