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Judge Lamberth has ruled (PDF Warning!) that it is permissible to classify such information, as long as the originator of the classification did not have any intent to conceal the wrongdoing. This obviously provides a hole a mile wide in the existing and widely understood rules regarding Classified Materials, delineated in . It runs counter to the intent clearly expressed by Mr. Bush and Rumsfeld (PDF!) in separate Documents.
But in this case, the Judge has ruled that just because evidence of a crime is contained within a classified document does not give the Public the right to have access to it. Previously in the Abu Ghraib case, the Taguba Report (PDF!), which was classified Secret, led to the Federation of American Scientists filing a complaint (PDF!) that the report, which had found evidence of detainee abuse and mistreatment, was improperly classified. This complaint resulted in the Information Security Oversight Office (ISOO) reviewiong and subsequently releasing the Taguba Report as a Declassified document.
"Nonplussed, did you classify the Document in question, marked as Exhibit A, as Super Duper Top Secret Eyes Only in order to avoid Prosecution, Public Disgrace, Imprisonment and a Large Fine? Please remember, you are under oath!"
"ABSOLUTELY NOT!!"
Judge Lamberth, who was appointed by St. Ronald in 1987, has provided a number of rational rulings on FOIA requests by watchdog groups for items such as the Whitehouse Visitor Logs from the Secret Service relating to Abramoff visits and those vanished e-mails. He has also spanked the Government in the past, perhaps most famously in the long running Cobell v. Norton, which was a class action suit against the Federal Government regarding mismanagement of Individual Indian Monies ( IIM) trust accounts. Eventually the lawsuit, born as Cobell v Babbitt, evolved into Cobell v Kempthorne.
While he presided over these proceedings Judge Lamberth issued a series of blistering memos, containing statements such as;
2/22/99 I have never seen more egregious misconduct by the federal government.
09/17/02 The Department of Interior’s administration of the Individual Indian Money (“IIM”) trust has served as the gold standard for mismanagement by the federal government for more than a century.
07/12/05 Our “modern” Interior department has time and again demonstrated that it is a dinosaur—the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind.
Judge Lamberth was removed from this case by the U.S. Court of Appeals for the District of Columbia Circuit on 07/11/06. The Government complained that Judge Lamberth has "Lost His objectivity" and the Court agreed. My point being that the Judge appears to be a fair and studied person.
I have to mention Steven Aftergood who writes the Secrecy News, which is published by the Federation of American Scientists. It is a great source of what is going on the ever expanding world of Government secrecy, while information is managed ever more carefully. Steven regularly comes up with documents which have been leaked and distributed, many provide some very interesting reading. The site also has a rich index of Congressional Research Service (CRS) papers on a wide array of subjects. His work will be more important than ever now, since you can A. Expect a Classification Explosion and B. Be quite certain that those Classified Interrogation Transcripts containing evidence of detainee abuse/"Enhanced Interrogation Techniques" shall never, ever see the light of day. That is, until some intrepid individual slips them to an anonymous source and they appear on websites such as Secrecy News.
6 Comments
this needs to be challenged, no doubyt about it
Proving intent is notoriously difficult. Lamberth may have made some reasonable rulings in the past but he clearly lost his way here.
Thanks, nonplussed.
I lost a link in the second sentence! It should read: This obviously provides a hole a mile wide in the existing and widely understood rules regarding Classified Materials, delineated in Executive Order 12958.
There is a way to balance the protection of the information AND the right to stop government lawlessness – simply file a change of venue to the FISC – the Foreign Intelligence Surveillance Court. Change the FISA law to make the FISC a court of general jurisdiction over all claims involving secrecy by the US government. In Camera review by the judge should be sufficient to identify the illegal conduct. The FISC can then issue an order, stating a finding of fact from the classified materials, and return the venue to the originating court. The government already has the power to request the FISC to do this, and so should any federal judge.
BTW, back when I worked for the government, there was a specific clause saying that “Classification may not be used to shield information regarding a crime or other misconduct from disclosure.” Where did this rule go?
There have been a lot of changes made to the Classification System over the years. Every President since Ike has taken a bite, on the average of every six years.
As you know, Mr. Bush has exceeded the most authoritarian of Rightwinger’s expectations in his administration’s stingy control of information. E.O. 13292 was the Bush vehicle for doing this and providing CYA services for Darth in the Scooter case.