The recent release of the fully declassified Pentagon Papers—a mere 40 years after they were originally leaked—inspired hope that it would lead to a thoughtful re-examination of the government’s reaction to WikiLeaks. Instead, the government has recently asserted new legal arguments about the WikiLeaks documents that raise potentially troubling questions that the academic community should not ignore.
The government’s initial prohibitions on federal employees’ accessing the WikiLeaks diplomatic cables, you’ll recall, inspired Columbia University’s career-services office briefly to advise students to avoid accessing WikiLeaks if they hoped for future State Department careers.
This was quickly deemed an overreaction.
Columbia reasserted its “core value” of “freedom of information and expression,” with one professor even suggesting that students studying international relations would be negligent if they did not study the WikiLeaks cables.
Government arguments filed in the Guantánamo detainee cases, however, should give any students or faculty who have ever held a security clearance pause and should caution any students considering future government or military service to consider carefully the possible risks to postgovernment academic research and employment.
Why are the Guantánamo detainee cases relevant? Because the government’s court filing, which opposed a detainee lawyer’s request simply to access the WikiLeaks documents on the Internet on the same basis as everyone else, revealed for the first time the legal interpretations underlying its larger WikiLeaks response. The government’s filing betrays an expansive interpretation of the legal obligations of people who have been granted security clearances and have therefore signed a Classified Information Nondisclosure Agreement. The potential implications of the government’s arguments for all people who have had, or ever will have, a security clearance are both broad and disturbing. A personal anecdote to illustrate:
In 1995, fresh out of college and having enlisted as a soldier in military intelligence—not unlike Bradley Manning—I was presented with my first nondisclosure agreement. After reading it, I consulted with an Army lawyer to ensure that I understood what I was signing. I was more than willing to agree not to divulge the classified information I would be given access to by the government as part of my job. I also accepted that if I later saw such information in a publicly available source, I would be prohibited from confirming its accuracy or authenticity based on my knowledge from classified sources. I further understood that the obligation to protect the information to which I was granted access would continue long after I left the Army.
My concern was a possible broader effect on my future employment. If after leaving the Army I were to become a journalist, for example, and a source provided different information to me, to which I had never had access from classified sources, but which the source claimed was classified, would the nondisclosure agreement prohibit me from publishing that information like any other journalist? The Army lawyer smiled and actually asked, “You mean like the Pentagon Papers?” He assured me that the nondisclosure agreement should be read to apply only to the classified information I would be given access to as a result of signing the agreement. “After all,” he said, “if you didn’t receive it from official sources, how would you even know it was authentic?” I was satisfied and signed.
In 2005, having left the Army and graduated from law school, I was presented with the same standard nondisclosure agreement, this time to review classified information as part of a legal team representing detainees in Guantánamo. I read the agreement again, agreed with the Army lawyer’s interpretation from 10 years before, and signed again.
It was shocking, therefore, when, following the release of the WikiLeaks diplomatic cables, the government cited the nondisclosure agreement to assert that Guantánamo detainee lawyers were required to treat the WikiLeaks documents as if they were authentic classified records that could only be used within a protected classified facility. I assumed this was a knee-jerk reaction to the public fallout over WikiLeaks that would surely be corrected upon reflection.
Recently, however, the government has clarified that the policy was no mistake. While in a small concession the government advised that detainee lawyers could now view WikiLeaks documents as temporary, glimmering electronic images on a personal-computer screen, the government reasserted that they were nevertheless forbidden to “download, save, print, disseminate, or otherwise reproduce, maintain, or transport” them. The implications of the government’s policy and its underlying legal arguments are remarkable for two primary reasons.
First, while the government’s court filing primarily discusses issues unique to detainee lawyers, the central justification for the government’s policy is the more basic fact that those lawyers, like all “individuals with security clearances,” are “obligated to protect all classified information” to which they have “access.”
In a footnote, where lawyers always put the argument they would prefer people not to notice, the government justifies its restrictions by relying upon the language of the standard classified-information nondisclosure agreement stating that anyone who signs it intends “to be legally bound” and that “they will not make unauthorized disclosures of classified information.” The government’s filing, in fact, includes a copy of the nondisclosure agreement as an exhibit. This is the same agreement signed by all current and former security-clearance holders that expressly applies not only while one’s security clearance is active but also, “at all times thereafter.”
Second, and more crucially, the government’s filing makes clear that its policy is unmoored from the principle that the “classified information” to which one has “access” refers only to the official access the government provides as a result of a security-clearance holder’s signing the nondisclosure agreement. The government’s arguments for restrictions on detainee lawyers, for example, do not rely upon any assertion that the lawyers have had access to any official government records that the WikiLeaks documents purport to replicate. Nor are the restrictions even limited to those WikiLeaks documents that might contain information relevant to Guantánamo. That is, the government has now asserted that individuals who have been granted a security clearance can be required to protect documents of questionable provenance and authenticity posted publicly online by unofficial sources regardless of whether those individuals had ever seen, or ever had any access to, or knowledge of them, as a result of their security clearance.
What does this mean? It means that the government’s lawyers do not appear to agree with the Army lawyer I spoke with in 1995. It means that in my new life as a law librarian, the government’s restrictions threaten my ability to fully serve the research needs of the faculty and students of the law school where I work. It means that my own academic research related to national-security topics, even if completely unrelated to Guantánamo or my work in the Army, may be burdened by restrictions and the risk of being accused of committing a security violation by downloading documents from the Internet.
More broadly, it means that other members of the larger academic community who may have previously served in senior or sensitive positions in government and whose research and scholarship today might be informed by the WikiLeaks documents should pause for a moment and consider. Could the nondisclosure agreement you signed many years ago while in government service obligate you to protect WikiLeaks documents like the classified information you may have had access to during a previous administration? I would not be too quick to answer that question in the negative.
To be clear, the government has not expressly asserted that restrictions on accessing the WikiLeaks documents extend to all former security-clearance holders, and it may choose, as a matter of discretion or to avoid controversy, never to do so. The government’s arguments have, nevertheless, laid the legal groundwork to make such an assertion a possibility. And the likelihood of such an assertion, however small, presents a dangerous and unacceptable risk of chilling academic research and public debate.
In the end, while students shouldn’t be worried that by reading the WikiLeaks documents as private citizens they might damage their future career prospects in government, they should carefully consider the possible restrictions government service might place on their career options later. When the government assures them that will not happen and that their concerns are unjustified, I have one suggestion for them: Make sure you get it in writing.
