Wikleaks: Conundrums of Disclosure and Declassification

by Peter Spiro

It’s easy to laugh at the USG for its directives to employees re the handling of Wikileaks cables (as the NYT put it this morning, a case of “shutting the barn door after the horse has left”).  The idea that a State Department employee talking about the cables in a Starbucks, much less with her spouse at home, would constitute a security violation seems preposterous.

But it is true that the cables remain classified.  And their classification status is unlikely to change anytime soon.  Indeed, it’s quite possible that none of the Wikileak documents will be declassified before their otherwise applicable 25-year declassification clocks have run, in some cases not until 2035.

There’s something sensible in this.  If disclosure were all it took to get a document declassified, that would supply an incentive to leak and disclose, especially to media outlets enjoying some first amendment insulation.  Moreover, the act of declassification out of step with the 25 year timeline supplies government validation of the disclosed document as authentic.  That could trigger some foreign government sensitivities.  There have been cases (involving a single or small number of documents) where other governments have been able in effect to ignore disclosures, almost pretending like they were forgeries, in the absence of USG acknowledgment.

On the other hand, it seems silly to treat the Wikileaks documents as if they haven’t been plastered all over the internet.  That’s why the directives to employees (existing and prospective) look so ham-handed — they are acting as if all the usual rules that apply to the handling of classified documents (don’t talk about them in Starbucks/don’t blog about them etc.) still apply, when everyone else is talking/blogging about them.

So the middle ground would be to keep them classified as a formal matter, but as a matter of information security to let them go and understand that they are now in the public domain.  There’s no legal mechanism for the distinction, and as a result I’m sure it would be bureaucratically tricky to act on it.  But all that good press the government was starting to get out of this (our writerly and mostly competent diplomats!) is going to go out the window if it doesn’t recognize some basic realities.

http://opiniojuris.org/2010/12/05/wikleaks-conundrums-of-disclosure-and-declassification/

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