WikiLeaks: The Secrets that Aren’t

Is it strange, just after Obama has shown the usefulness of asking for (and getting) a waiver of a Hawaiian law about the confidentiality of public records, to read that his Justice Department has warned military lawyers not to click on links, on sites like the New York Times (which also reported the story), because the files they lead to are, technically, classified? The lawyers in question are defending prisoners at Guantánamo who are the subject of those files, which were obtained by WikiLeaks and shared with several news organizations; they generally can see the documents, in secure settings—they are just not allowed to read the Times. And the President is less constrained by the law than he was in the case of his long-form birth certificate: for that, he had to ask Hawaii for a waiver, while he has the power to declassify documents on his own.

This is not just a matter of convenience: as the government itself has said, the files contain information that it no longer believes. But the restrictions on the lawyers mean, as one of them, David Remes, pointed out in an emergency petition filed yesterday, that they cannot comment on or rebut charges that the rest of us read online. According to the Times, Remes wondered if he might put himself in legal jeopardy, or get himself barred from the case, putting his client at a disadvantage, just by reading the news and talking about it.

Obama’s birth certificate revealed nothing, of course, unless one really wanted to know the name of the doctor who delivered the President. But allowing defense lawyers to read files everyone else can read online would reveal nothing, either. There has been confusion, in our war on terror, about what a secret is, and what it isn’t. In some instances, invoking the state-secrets privilege to keep cases about torture out of court, the government has acted as if things that have been extensively documented, and are widely known, count as “secret” if the government hasn’t admitted them. But “secret” should not be a synonym for “not owned up to”—written in invisible ink in some ledger of accountability. (Meanwhile, there are reports of a new subpoena in the government’s investigation of WikiLeaks.)

The Times also noted an interesting use of the WikiLeaks documents:

Some foreigners applying for asylum in the United States have attached diplomatic cables printed from the Internet that describe repression in their native countries—requiring the Department of Homeland Security to store their applications in special safes and to apply cumbersome security rules.

Apart from the storage question, that is a window on what these documents have meant to people other than us—in other countries, with other secrets.