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“WikiLeaks Documents Explosive”:1 The Potentially Perverse Effects of Scholars' Being Forced to Look to Third Parties Rather Than State Institutions for Classified Material
Published online by Cambridge University Press: 02 January 2013
Extract
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears … All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.
- Type
- Problems in Accessing Information: A Collection of Essays
- Information
- Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 3 , December 2011 , pp. 591 - 598
- Copyright
- Copyright © Canadian Law and Society Association 2011
References
2 Presidential Memorandum for the Heads of Executive Departments and Agencies on the Freedom of Information Act (January 21, 2009), http://www.dol.gov/dol/foia/2009_FOIA_memo.pdf.
3 Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (October 12, 2001), http://www.justice.gov/archive/oip/011012.htm (“Any discretionary decision … to disclose information protected under the FOIA should be made only after full and deliberate consideration … [When you] decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions …”)
4 See Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (October 4, 1993).
5 See Presidential Memorandum for the Heads of Executive Departments and Agencies on Transparency and Open Government (January 21, 2009), http://www.gwu.edu/~nsarchiv/news/20090121/2009_transparency_memo.pdf; Presidential Memorandum for the Heads of Executive Departments and Agencies on the Freedom of Information Act (January 21, 2009), http://ww.dol.gov/dol/foia/2009_FOIA_memo.pdf.
6 See, e.g., Metcalfe, Daniel J., “Sunshine Not So Bright: FOIA Implementation Lags Behind,” Administrative and Regulatory Law News 34 (2009), 5Google Scholar; “Audit: Agencies Lag in Following Obama's Openness Order,” Associated Press (March 15, 2010)Google Scholar; “Sunshine and Shadows: The Clear Obama Message for Freedom of Information Meets Mixed Results” (March 15, 2010), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB308/2010FOIAAudit.pdf.
7 On January 25, 2011, The Cutline blog reported that the New York Times is considering creating an “in-house submission system” that would allow readers to leak material directly to the paper. Calderone, Michael, “NY Times Considers Creating an ‘EZ Pass Lane for Leakers,’” The Cutline (January 25, 2011)Google Scholar, http://news.yahoo.eom/s/yblog_thecutline/20110125/ts_yblog_fhecutline/ny-times-considers-creating-an-ez-pass-lane-for-leakers. This move would mirror Al Jazeera's creation of a “Transparency Unit” designed to accomplish the same task. See Khatchadourian, Raffi, “A WikiLeaks Arms Race?” The New Yorker blog (January 24, 2011)Google Scholar, www.newyorker.com/online/blogs/newsdesk/201l/01/transparency-unit-wikileaks.html#ixzzlC7Uapeac.
8 See McCleskey v. Kemp, 481 US 279 at 286–87, 308 (1987)Google Scholar (addressing the import of “two sophisticated statistical studies” regarding the correlation between race and imposition of the death penalty).
9 See United States v. Morrison, 529 US 598 at 629–34 (2000)Google Scholar (citing findings Congress made on the basis of numerous studies before enacting the Violence Against Women Act, parts of which the Supreme Court struck down as unconstitutional).
10 For an example, in a related context, of how governmental action reducing available accurate information causes difficulties for those attempting to understand the effects of particular laws (here gun control laws) on society, see Luo, Michael, “N.R.A. Stymies Firearms Research, Scientists Say,” New York Times (January 25, 2011)Google Scholar, http://www.nytimes.com/2011/0l/26/us/26guns.html (arguing that after lobbying by the National Rifle Association, the government no longer provides funding to researchers investigating links between gun ownership and violence).
11 See, e.g., Brenner, Samuel, Shouting at the Rain: The Voices and Ideas of Right-Wing Anti-Communist Americanists in the Era of Modern American Conservatism, 1950–1974 (Ann Arbor, MI: University Microfilms International, 2010), 27–28, 413–15Google Scholar.
12 FOIA, which was enacted in 1966, applies to departments and agencies in the executive branch of the US government, but does not apply to Congress, the federal courts, or parts of the Executive Office of the Presidency. Although it does not apply to state governments, every state has freedom of information statutes. To file a FOIA request, interested parties must simply write detailed letters to the relevant agencies explaining what information they are seeking, and they should ideally receive responses as well as information about fees. In the event an agency responds in an unsatisfactory fashion, the information-seeker can file an administrative appeal. Each agency maintains a Web site with information about how to seek information from that agency through FOIA, together with sample FOIA request letters. The Web site of the National Security Archive at George Washington University also provides useful information about FOIA and how to seek information through FOIA requests (www.gwu.edu/~nsarchiv/nsa/ foia/howtofoia.html), as does the National Archives itself (www.archives.gov/foia/).
13 See, e.g., Nakashima, Ellen and Warrick, Joby, “WikiLeaks Takes New Approach in Latest Release of Documents,” Washington Post (July 26, 2010)Google Scholar, http://www.washingtonpost.com/wp-dyn/content/article/2010/07/25/AR2010072503356.html; “Huge Wikileaks release shows US ‘ignored Iraq torture,”” BBC News (October 23, 2010)Google Scholar; Ball, James, “WikiLeaks publishes full cache of unredacted cables,” Guardian (September 2, 2011)Google Scholar. WikiLeaks is certainly not the only Web site publishing and publicizing once-secret documents (even government documents) for public scrutiny. Talking Points Memo, a liberal site publishing commentary, has a companion site, TPMMuckraker, that seems dedicated to publishing and discussing documents and other evidence describing governmental corruption. In 2009, Wired identified and published a secret government document that was actually part of the prospective Anti-Counterfeiting Trade Agreement. Kravets, David, “Here's That Leaked Copyright Treaty Document,” Wired (November 6, 2009)Google Scholar, http://www.wired.com/threatlevel/2009/ll/acta/. Early in 2011, Al Jazeera and the Guardian jointly published what became known as the “Palestinian Papers,” which were files reportedly revealing information about the Palestinian bargaining positions during negotiations with Israel in 2008. See, e.g., Sanders, Edmund, “Leaked Documents Show Palestinians Ready to Deal at 2008 Peace Talks,” Los Angeles Times (January 26, 2011)Google Scholar, http://www.latimes.com/news/nationworld/world/la-fg-palestinian-papers-20110126,0,3588449.story.
14 See, e.g., Hudson, John, “The Web Braces for Biggest Wikileaks Dump to Date,” Atlantic Wire (September 10, 2010)Google Scholar (“Pfc. Bradley Manning, who has been charged with improperly downloading and leaking classified information, disclosed to a former hacker in May that he had given WikiLeaks a database covering 500,000 events in the Iraq War between 2004 and 2009”). To protect against future leaks, the United States military has modified most of its computers to prevent individuals from downloading data onto memory sticks, DVDs, or similar media, and the White House has established a host of new security rules. See Schmitt, Eric, “White House Orders New Computer Security Rules,” New York Times (October 6, 2011)Google Scholar, http://www.nytimes.com/2011/10/07/us/politics/white-house-orders-new-computer-security-rules.html.
15 For analysis of some of the motives behind Wikileaks, see Keller, Bill, “Dealing With Assange and the WikiLeaks Secrets,” New York Times, January 26, 2011Google Scholar, http://www.nytimes.com/2011/01/30/magazine/30Wikileaks-t.html?_r=l; Leigh, David & Harding, Luke, WIKILEAKS: Inside Julian Assange's War on Secrecy (London: Guardian Books, 2011)Google Scholar.
16 Indeed, in recent years, he has been cited as a source on the John Birch Society by Rachel Maddow on MSNBC, as well as by journalists interested in the right wing. See, e.g., The Rachel Maddow Show (December 23, 2009); Zaitchik, Alexander, Common Nonsense: Glenn Beck and the Triumph of Ignorance (Hoboken, NJ: John Wiley & Sons, 2010), 217Google Scholar; Heard, Alex, “The Department of Forgetting,” Slate (June 24, 2008)Google Scholar, http://www.slate.com/id/2191902/. Some of his collected papers are now archived at New York University's Tamiment Library & Robert F. Wagner Labor Archives, http://dlib.nyu.edu/findingaids/html/tamwag/lazare.html.
17 See, e.g., “Special Collections at Brown University: A History and Guide,” https://library.brown.edu/guide/12b.html.