[Intelforum] Secrecy News -- 05/22/12

Tue May 22 12:21:10 EDT 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 48
May 22, 2012

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

**     RESTRICTIONS ON WIKILEAKS DOCUMENTS CHALLENGED IN COURT
**     THE CHICKEN AND THE EGG, AND MORE FROM CRS

RESTRICTIONS ON WIKILEAKS DOCUMENTS CHALLENGED IN COURT

The publication of leaked classified documents by WikiLeaks continues to
confound government officials and to generate some unusual legal tangles. 
Last month, attorneys for a Guantanamo prisoner asked a federal court to
nullify the restrictions that the government has imposed on access to and
dissemination of the leaked records, so that the prisoner can prepare a
response to the disclosures contained in them.

Hundreds of files pertaining to prisoners at Guantanamo have been posted
online by WikiLeaks.  In a December 2010 notice, the government advised the
security-cleared attorneys who were representing detainees in their habeas
corpus petitions that the WikiLeaks materials retained their classification
status, despite the fact that they had been globally distributed, and that
they must be treated like any other classified document.  In June 2011, the
government modified its position to authorize attorneys to view the
WikiLeaks documents on a non-government computer, but not to download,
save, print, disseminate or transport them.

The government policy on this matter is unworkable and incoherent, argued
attorneys for detainee Abdulhadi Omer Mahmoud Faraj in an April 18 motion
in DC district court.  Worse, they said, it is damaging and unfair to their
client.

	http://www.fas.org/sgp/jud/faraj/motion279.pdf

"WikiLeaks has made available to the world Mr. Faraj's Detainee Assessment
Brief (DAB) [which] is based in significant part on unreliable claims made
by individuals under conditions that amount to coercion, if not torture." 
But due to the government's restrictions, "Mr. Faraj cannot review with his
attorneys any of the pertinent documents published by WikiLeaks nor can he
meaningfully consult with his attorneys to develop a response to the
one-sided and negative narrative that the materials reflect," the motion
stated.

Attorneys argued that the portrayal of Mr. Faraj in the leaked Brief,
which presents him as a violent Islamist extremist, places him and his
family in jeopardy.

"The relief Mr. Faraj seeks here is necessary to protect his family in
Syria, to the extent possible, and to preserve his prospects for
resettlement or repatriation without risk of torture should he be finally
set free by the Court or the government.... The false allegations in the
leaked DAB, especially if left unrebutted, jeopardize Mr. Faraj's safety
upon repatriation and that of his family."

"Because the DAB from WikiLeaks is among the top-recalled items when using
a search engine such as Google to find news of Mr. Faraj, it is especially
important for the Court to grant the relief sought herein so counsel and
Petitioner can develop a public response to the DAB allegations," the
motion stated.

The motion presents several cogent criticisms of the government's
restrictions on use of the WikiLeaks documents.  For example, Mr. Faraj's
attorneys wrote, it makes no sense to permit "viewing" a document while
prohibiting "downloading" it.

"When the security-cleared attorney views a WikiLeaks document on her
personal computer, that page is stored in the computer's memory despite the
attorney's lack of intent to download the document," the motion noted.

Likewise, though the government "purports to prohibit transportation of
WikiLeaks materials, it permits counsel to view these materials on their
personal computers, leaving open the question whether counsel may access
these materials on a personal laptop computer or tablet device, which by
their nature are transportable."

In a particularly interesting line of argument, the motion disputed the
government's legal right to regulate the attorneys' access to the WikiLeaks
documents in the first place, because they said the nondisclosure
agreements signed by the attorneys and the protective order issued by the
court apply only to information that was provided by the government.

Those agreements "refer not to all classified information in existence,
but rather to the specific classified information the government releases
to security-cleared attorneys in connection with habeas litigation."  Since
the WikiLeaks documents were obtained independently, they are beyond the
purview of the nondisclosure agreement, the motion said.

The Faraj attorneys expressly acknowledged that they are not allowed to
comment on classified information in the public domain in a way that
reflects or is derived from their authorized access to non-public sources. 
But "in all other regards, when the information is publicly available and
neither accessed pursuant to the Nondisclosure Agreement nor the Protective
Order, Mr. Faraj's security-cleared attorneys must be treated no
differently from the general public with respect to that information," they
wrote.

"Since Mr. Faraj's security-cleared habeas counsel did not illegally
disclose or come into possession of this information, but rather merely
seeks to make use of it in its already-public form, they are no different
from the public at large and the government may not restrict their use of
WikiLeaks materials," the motion concluded.

On May 18, government attorneys filed a response in opposition to the the
Faraj motion, but that response was classified.

	http://www.fas.org/sgp/jud/faraj/notice286.pdf

A reply from the petitioners is due July 16.

Another dispute over the use of WikiLeaks documents in habeas proceedings
arose last year in the Paracha case, but that dispute was resolved or
superseded without a court ruling.  See "Govt Opposes Attorneys' Free Use
of WikiLeaks Documents," Secrecy News, June 16, 2011.

	http://www.fas.org/blog/secrecy/2011/06/wl_habeas_opp.html

THE CHICKEN AND THE EGG, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that
Congress has not made available to the public include the following.

Table Egg Production and Hen Welfare: The UEP-HSUS Agreement and H.R.
3798, May 14, 2012:

	http://www.fas.org/sgp/crs/misc/R42534.pdf

Intelligence Authorization Legislation: Status and Challenges, May 21,
2012:

	http://www.fas.org/sgp/crs/intel/R40240.pdf

Central Asia: Regional Developments and Implications for U.S. Interests,
May 18, 2012:

	http://www.fas.org/sgp/crs/row/RL33458.pdf

U.S.-Vietnam Relations in 2011: Current Issues and Implications for U.S.
Policy, May 18, 2012:

	http://www.fas.org/sgp/crs/row/R40208.pdf

The U.S. Export Control System and the President's Reform Initiative, May
18, 2012:

	http://www.fas.org/sgp/crs/natsec/R41916.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood