New York Times
POSTED: 1:30 a.m. HST, Apr 27, 2011
WASHINGTON >> Anyone surfing the Internet this week is free to read leaked documents about the prisoners held by the U.S. military at Guantanamo Bay, Cuba, to print them out or e-mail them to friends.
Except, that is, for the lawyers who represent the prisoners.
On Monday, hours after the anti-secrecy group WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantanamo defense lawyers that the documents remained legally classified even after they were made public.
Because the lawyers have security clearances, they are obligated to treat the readily available files “in accordance with all relevant security precautions and safeguards” — handling them, for example, only in secure government facilities, said the notice from the department’s Court Security Office.
It is only the latest absurdist challenge posed by the flood of classified material obtained by WikiLeaks over the past year: field reports from the wars in Afghanistan and Iraq; State Department cables; and now the military’s risk assessments of 700 past or present Guantanamo prisoners.
Joseph Margulies, a Northwestern law professor who represents Abu Zubaydah, the detainee accused of being a terrorist facilitator who was waterboarded by the CIA, said he could not comment on the newly disclosed assessment of his client, which is posted on The Times website.
“Everyone else can talk about it,” Margulies said. “I can’t talk about it.”
The ballooning category of public-but-classified documents has befuddled officials and led to a series of unusual pronouncements from government agencies and those who work with them.
In December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chances of getting a government job. The same month, the U.S. Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home.
Some of those warnings were quickly modified or withdrawn after attracting public ridicule. But the general principle that the leaked files remain classified remains in effect, with varying consequences.
Some foreigners applying for asylum in the United States have attached diplomatic cables printed from the Internet that describe repression in their native countries — requiring the Department of Homeland Security to store their applications in special safes and to apply cumbersome security rules.
State Department employees have confided that they read leaked cables on newspaper websites at home rather than risk trouble by viewing them at work. A Times reporter who appeared with a State Department official on a recent panel was advised not to show leaked cables as slides — the official was prohibited from looking at them.
But the prohibition for Guantanamo lawyers has serious implications, said Margulies, who wrote a book on Guantanamo and has represented five prisoners there. Decisions about who gets released have been influenced by politics and public pressure as much as by legal standards, he said.
“It’s important to be able to use these documents to shape and inform the discussion in the public square,” he said.
If a leaked risk assessment contains clearly disproved accusations about a prisoner, a lawyer should be able to publicly refute it, he said.
On Tuesday, Attorney General Eric H. Holder Jr. told reporters that he considered the dissemination of the classified Guantanamo documents, prepared under the Bush administration, to be “deplorable.” And he said the Obama administration would not make public, even with redactions, its own assessments of the 240 prisoners who were still at Guantanamo when it took office in 2009.
The new files, Holder said, “involve a whole variety of information gleaned from a wide assortment of sources, some of which are classified.
“That being the case,” he continued, “I would be concerned about putting out information that was incomplete.”
Meanwhile, Dean Boyd, a Justice Department spokesman, said the department was trying to answer questions posed by lawyers for Guantanamo prisoners about the restrictions on using the leaked documents.
“We’re working through these issues right now,” Boyd said. “We simply want to ensure that any information released by WikiLeaks is handled properly.”
At the Congressional Research Service, the branch of the Library of Congress that advises senators and representatives, employees were advised in December that they could not quote the classified documents obtained by WikiLeaks in their reports. Some analysts with the service grumbled privately that members of Congress were asking about diplomatic cables, but they were not permitted to quote the cables in reply.
Janine D’Addario, a spokeswoman for the research service, said she could not say whether the restrictions had hampered its work because its research was supposed to be confidential. But Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said there was no question that the researchers were handicapped as they reported on the wars, foreign relations or Guantanamo.
“It’s the definition of self-defeating,” Aftergood said. “It doesn’t serve the interest of Congress or the public.”
Aftergood said the problems had resulted from the unprecedented scale of the WikiLeaks disclosures, which the rules did not anticipate. Tens of thousands of military documents have been disclosed, and about 8,000, so far, of a cache of 250,000 diplomatic cables.
“The surge of classified documents into the public domain has tied the system up in knots,” he said. The rush to impose patently pointless restrictions “does demonstrate a disappointing lack of agility in the security system,” Aftergood said.
But Peter J. Spiro, who teaches international law at Temple University, said the government’s dilemma was real. The law is clear: Only a document that is properly declassified loses its protections. And if the government ruled that classified documents disclosed to the public were automatically declassified, that would simply create a more powerful incentive for disgruntled government employees to leak.
“The trouble is, it makes the government look totally ham-handed,” Spiro said. “There are documents on the front page that everyone’s talking about, and it looks ridiculous to pretend they’re not there.”