Government attorneys this week asked a court to dismiss a lawsuit brought by author Anthony Shaffer who claimed that his freedom to publish a memoir of his military service in Afghanistan had been violated. The government said that Mr. Shaffer’s book, “Operation Dark Heart,” which appeared last September in censored form, contained properly classified information which the author has no right to publish.
What makes the case doubly strange is that uncensored review copies of the book are in circulation, along with the redacted version that has become a best seller. As a result, the case provides a unique opportunity for the public to assess the quality of official classification practices in real time by comparing the two (pdf).
The government has “unlawfully imposed a prior restraint upon the plaintiff by obstructing and infringing on his right to publish unclassified information,” author Shaffer stated in his December 14, 2010 complaint (pdf) against the Department of Defense and the CIA.
Not so, said the Justice Department in its new motion to dismiss (pdf), dated May 16. The book contains classified material and “Plaintiff has no First Amendment right to publish classified information.”
This week the government also told Mr. Shaffer’s attorney, Mark S. Zaid, that several previously censored words or sentences in the book could now be disclosed. “While classified eight months ago, [they] no longer remain classified.” So, for example, the Justice Department said that this sentence was properly classified last September but is now unclassified and may be made public:
“Dawn was an awkward time of day when night-vision goggles were not effective, and it was hard to distinguish anything more than gray and purple shapes.”
A listing of other newly declassified words and sentences in the book was provided by the Justice Department on May 16.
A side-by-side presentation of several censored and uncensored pages from Mr. Shaffer’s book, including some passages that have since been declassified and some that have not, may be found here (pdf).
See also “Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010.
The Public Interest Declassification Board, a White House advisory body, was asked by President Obama to develop recommendations for a “fundamental transformation” of the national security classification system. The Board developed several proposals of its own and solicited others from interested members of the public. All of those, including one from the Federation of American Scientists, have now been posted online for public comment.
The Board will hold a public meeting on May 26 at the National Archives to discuss the proposals.
While well-intentioned, the process suffers from several limitations. First, the President did not specify what manner of “transformation” he had in mind. This is problematic because the path selected for transformation naturally depends on the desired goal. Second, the Board has no particular influence or leverage that it can exert to advance its ultimate recommendations. Even at the White House, most relevant national security personnel seem to be unaware of or uninterested in the Board’s deliberations. Finally, there is no internal incentive to drive transformation and no visible leadership to compel it.
In truth, the classification system is undergoing transformation at every moment, but mostly in undesirable ways. Thus, during President Obama’s first full year in office, the number of “original classification decisions,” or new secrets, grew by 22.6 percent, according to the latest annual report (pdf) from the Information Security Oversight Office.
Phi Beta Iota: In combination with the now documented and incredibly unconstitutional belief of the Department of Justice that it has the right to lie to the Court anytime it wishes to, and a Congress that abdicated its Article 1 responsibilities right after Newt Gingrich led the “revolution” that ended any form of bi-partisanship, it can safely be said that the US Government is out of control–not just on classification, but on everything else as well. This is UGLY.