Yesterday, Colleen Kollar-Kotelly upheld the government’s right to withhold cables already released via WikiLeaks under FOIA (see my earlier posts on this FOIA here and here). Her logic seems to have a fatal flaw: she says the State Department has proven (and the ACLU has not rebutted the claim) that the US Government owns the cables.
The ACLU simply offers no rejoinder to the State Department’s affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. [my emphasis]
But then she says (noting that ACLU made no mention that these cables had also been released via WikiLeaks and therefore pretending that they might be different) that the government has not officially acknowledged these cables are authentic.
No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure.
I guess they should let Bradley Manning go free, then, since the State Department isn’t prepared to say the cables he is accused of leaking were authentic?
But that’s not the most troubling part of this ruling. As I lay out below–and as Kollar-Kotelly presumably knows well–the cables are full of admissions of crime, including murder, torture, and kidnapping. Thus, had she reviewed them to see whether the government’s claims that they were properly classified are valid, she would have seen that–in addition to information properly classified to protect foreign relations–a lot of the original classification and the government’s refusal to officially release them (which would presumably make them admissible in a court) serve to hide confessions of criminal activity.
So Kollar-Kotelly chose not to review these cables in camera, choosing instead to rely on the State Department declaration that makes no mention of the criminal admissions included in the cables.
In this case, because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera.
It was a cowardly ruling. But all the more cowardly, given that Kollar-Kotelly prevented herself from officially reviewing a bunch of evidence of criminal wrong-doing.
Here are details on the cables Kollar-Kotelly doesn’t want to read:
The famous meeting at which Ali Abdullah Saleh promised to lie about our strikes in Yemen
Kollar-Kotelly agreed to keep what has become perhaps the most famous cable ever, in which David Petraeus and Ali Abdullah Saleh discuss the missile strikes we conducted in Yemen in late 2009.
Mind you, the government likely has a very good legal reason to keep this cable secret. The cable makes it clear we were targeting Anwar al-Awlaki (as well as Nasir al-Wuhayshi) in those strikes. And releasing that would constitute official acknowledgement of the targeting of Awlaki that the government has tried so hard to avoid. Furthermore, as I’ll show in a follow-up post, it also shows that we targeted Awlaki for death before we had evidence implicating him in a crime.