A federal judge today in Washington said the State Department doesn't have to publicly disclose a cache of embassy cables even though the information is purportedly in the public domain via a document release from WikiLeaks.
The American Civil Liberties Union sued the State Department in June 2011 in Washington's federal trial court, trying to press the agency to release 23 cables that address, among other things, bilateral relations with foreign countries and investigations of individuals suspected of terror acts.
U.S. District Judge Colleen Kollar-Kotelly today rejected the ACLU's argument that the cables should be published because a third party, WikiLeaks, the independent whistleblower site, put the information in the public domain. Public disclosure itself, the judge said, is insufficient to trump an agency's intent to keep information secret.
"No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure," Kollar-Kotelly said in her ruling.
Kollar-Kotelly said statements from executive branch officials about the authenticity of WikiLeaks document disclosures don't necessarily corroborate the information in dispute in the ACLU's suit. The ACLU's lawyers, the judge said, "failed to tether those generalized and sweeping comments to the specific information at issue in this case."
In the litigation, the State Department, represented by the U.S. Justice Department, cited an exemption in the Freedom of Information Act that allows material to be kept secret in the interest of the national security.
Trial attorney Scott Risner of DOJ's Civil Division said in court papers filed in February that while the State Department "has condemned the unauthorized release and dissemination of classified information, it has never confirmed that the 23 particular documents at issue here were part of such a disclosure."
The ACLU's legal team, which included Arthur Spitzer and Ben Wizner, said in court papers that "any harm caused by release of the cables has already occurred, and are entitled to summary judgment in their favor."
The State Department, according to the ACLU, has confirmed the WikiLeaks documents are authentic government records.
"Any implication that the text of the cables released by WikiLeaks is fraudulent or inauthentic simply lacks plausibility," Spitzer said in court papers.
Kollar-Kotelly deferred to the "considered judgment" of the executive branch in its position that disclosure of the cables could harm national security. "It is well established that the assessment of harm to national security is entrusted to the Executive and not the courts," the judge said.