creators.com opinion web
Liberal Opinion Conservative Opinion
Jacob Sullum
Jacob Sullum
25 Mar 2015
Ted Cruz Is Right About Taxes: The Internal Revenue Code's Headache-Inducing Complexity Is a Scandal

If you have not done your taxes yet, do not count on getting help from the Internal Revenue Service in … Read More.

18 Mar 2015
The Squeal of the War Hogs: Why Do Lindsey Graham and John McCain Think Half a Trillion Dollars Is Not Enough To Defend the Country?

During a recent visit to New Hampshire, Lindsey Graham said that if he were president, he "would literally … Read More.

11 Mar 2015
Darren Wilson's Friendly Trial: The Rigged Process that Exonerated the Cop Who Shot Michael Brown Highlights the Need for Independent Prosecutors

A Justice Department report released last week makes a strong case that Ferguson, Mo., police officer Darren … Read More.

You Call That a Secret?: The Government Bends the Law to Hide What it Has No Business Hiding

Comment

At midnight on New Year's Eve, a vast number of government documents that are secret now will be secret no more. The automatic declassification, which applies to all material that is at least 25 years old unless agencies have sought exemptions for it, will include hundreds of millions of pages from the FBI, the CIA and the National Security Agency.

Historians, who will be digesting these documents for decades, can look forward to millions more every year from now on. They can thank not only President Bill Clinton, who signed the 1995 executive order establishing the declassification policy, but also President George W. Bush, who followed through on it.

Despite its willingness to reveal the secrets of a quarter century ago, the Bush administration — like the Clinton administration, but with measurably more enthusiasm — continues to abuse the classification system. It bends the law to hide material it has no legitimate reason to hide, as illustrated by its recent squabble with the American Civil Liberties Union over a document so boring it's hard to see what the fuss was about.

This "Information Paper," dated Dec. 20, 2005, addresses "the permissibility of photographing enemy prisoners of war (EPWs) and detainees in the Iraqi Theater of Operations." It's a little more than three pages long yet highly repetitive.

The take-home message: Journalists may photograph prisoners as long as the individuals are not identifiable and are not pictured "in any manner that might be interpreted as holding them up to public curiosity," in violation of the Geneva Conventions. Soldiers may photograph prisoners only when their official duties require it.

The juiciest part of the document is an admonition that recalls the notorious Abu Ghraib photos: "Detainees will not be photographed, humiliated or placed in positions with sexual overtones." Since the Abu Ghraib pictures came to light in April 2004, people might wonder, as the ACLU puts it, "whether the guidelines were in place prior to the Abu Ghraib scandal and, if not, why it took more than a year after the scandal to issue a policy."

Or they might not.

In any case, there is nothing remotely threatening to national security about this summary of military regulations. Yet it was labeled "SECRET" at the top and bottom of every page, and after someone e-mailed it to the ACLU in October, the Justice Department obtained a grand jury subpoena demanding "any and all copies" of it.

The subpoena's breadth indicated that its aim was not to investigate a possible crime (in this case, violation of the Espionage Act) but to prevent the dissemination of classified material. This appears to be an unprecedented use of a grand jury subpoena, which is supposed to be used to obtain information, not suppress it.

The ACLU filed a motion to quash the subpoena, arguing that the government was abusing the grand jury process to achieve what amounted to a prior restraint on speech, aimed at stopping the ACLU from publicizing the document's contents. At a Dec. 11 hearing, U.S. District Judge Jed Rakoff seemed inclined to agree.

"There seems to be a huge difference between investigating a wrongful leak of a classified document and demanding all copies of it," Rakoff noted. "I wonder what the authority is for using a grand jury subpoena for that purpose." He also alluded to the 1971 "Pentagon Papers" case, in which the U.S. Supreme Court said the government may not prevent publication of classified material unless it would cause "direct, immediate, and irreparable damage to our Nation or its people."

One week after that hearing, the Justice Department, suddenly realizing "the grand jury can obtain the evidence necessary to its investigation from other sources," dropped its subpoena. The document, deemed "secret" just a year ago based on criteria that are hard to fathom, was declassified on Dec. 15 for reasons equally mysterious. This is the sort of thing that gives secrets a bad name.

Jacob Sullum is a senior editor at Reason magazine, and his work appears in the new Reason anthology "Choice" (BenBella Books). To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2006 CREATORS SYNDICATE, INC



Comments

0 Comments | Post Comment
Already have an account? Log in.
New Account  
Your Name:
Your E-mail:
Your Password:
Confirm Your Password:

Please allow a few minutes for your comment to be posted.

Enter the numbers to the right:  
Creators.com comments policy
More
Jacob Sullum
Mar. `15
Su Mo Tu We Th Fr Sa
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31 1 2 3 4
About the author About the author
Write the author Write the author
Printer friendly format Printer friendly format
Email to friend Email to friend
View by Month
Authorís Podcast
Walter Williams
Walter E. WilliamsUpdated 1 Apr 2015
Froma Harrop
Froma HarropUpdated 31 Mar 2015
Newspaper ContributorsUpdated 30 Mar 2015

29 May 2013 Obama Debates the War on Terror With Himself

9 Jan 2008 The Thin Man Goes to Washington

16 Oct 2013 The Best Defense Your Money Can't Buy