How Can We Prevent Abuses of Classifying Information?

redact3.jpgI previously blogged about how the U.S. Court of Appeals for the Second Circuit attempted to edit out information about a rather seedy interrogation technique from its opinion. Over at the Volokh Conspiracy, Jonathan Adler writes about another case involving a similar redaction:

Majid Khan is a CIA detainee. In meetings with his attorneys, Khan has apparently made allegations concerning his treatment during his detention. Yet such information, even as detailed by Khan himself, is presumptively classified, and his attorneys are apparently barred from relating Khan’s claims to Congress. Marty Lederman finds this “absurd,” and I am inclined to agree. As Lederman asks, “Even if the classification [of the techniques] were itself valid, can it really be the case that the persons against whom the CIA employed its methods may be prevented from disclosing such historical facts to the public?” . . . .

As in the Khan case, the “secret” material concerns the U.S. government’s alleged (mis)treatment of a detainee, not the sort of information for which classification could be justified on national security grounds. (See Patterico’s analysis here.) The disclosure of such information could be embarrassing to the U.S. government, to be sure, but that would hardly justify keeping such material classified or barring public disclosure. To the contrary, public policy often explicitly encourages the disclosure of such information by protecting (and sometimes even rewarding) whistleblowers and others who disclose potential government wrongdoing.

Marty Lederman over at Balkinization strongly calls for an end to this “absurd classification nonsense.”

I completely agree with both Adler and Lederman, as I indicated in my post. The difficult issue is how the law can be structured to prevent such classification abuses. The government currently has little to lose by over-classifying, so why not classify embarrassing information? What can be done to prevent unwarranted attempts at classifying information?

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1 Response

  1. Geoff says:

    Why not classify embarrassing information? That would be illegal, or at least inconsistent with the Executive Order on classfication, which specifically forbids the practice: “In no case shall information be classified in order to . . .

    (2) prevent embarrassment to a person, organization, or agency . . . .” It’s possible to argue that order is not enforced, but it is at least on the books, if I am not mistaken. See http://www.fas.org/sgp/clinton/eo12958.html