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...the Government respectfully submits that it is neither appropriate nor necessary in these circumstances [Footnote] 1 to treat the document as 'presumptively classified' and to facilitate its submission through Court Security Officers. Instead, for the reasons explained below, while the Government does not confirm or deny the authenticity or classification of this or any other particular document posted to Wikileaks, the Government has no objection to the submission of the email on the public record under these circumstances; moreover, clarifying that the Government has no objection to the filing of this email on the public record in these circumstances represents the most expeditious way of moving this case forward. [Footnote] 2
[...]
Due to the combination of several factors, it is neither appropriate nor necessary to treat the Wikileaks document plaintiffs wish to submit as evidence in this case as presumptively classified. The email purports to be an exchange between non-government employees of a private company, not a purported government document, and the email's author merely relays information he obtained from another unnamed source. Further, because the email was posted to Wikileaks, it is already available in the public domain [Footnote] 1 for anyone (such as plaintiffs' counsel, for example) to search for, access, and download. Neither plaintiffs nor plaintiffs' counsel have authorized access to classified information, so their republication of this already public email does not risk being interpreted as confirmation or denial of the document's contents by an individual in a position of knowledge. Nor has plaintiffs' counsel signed a non disclosure agreement that legally obligates him to comply with certain procedures to ensure the safeguarding of potentially classified information.
Indeed, in all material respects, the email (in which the author, a non-government employee, merely relays information purportedly obtained from an anonymous source) is analogous to a story published on the New York Times website or a blog that purports to rely on an unnamed source providing potentially classified information. The Government does not officially confirm or deny the accuracy of such publicly available articles or conduct a 'classification review' of them, and yet there is no basis to treat them as presumptively classified or employ specialized procedures to facilitate their submission by non-cleared counsel for the Court's in camera review. Indeed, similar documents are often submitted in Freedom of Information Act cases in an effort to defeat the Government's invocation of an exemption or a Glomar response, and courts routinely recognize a critical distinction between information publicly described by nongovernment or anonymous sources and official Government disclosures. See, e.g., ACLU v. U.S. Dep't of Defense, 628 F.3d 612, 621 22 (D.C. Cir. 2011)
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[Footnote] 3 A contrast with the Government's position regarding the handling of certain Wikileaks documents by cleared counsel in the Guantanamo detainee habeas cases may be illuminating. The Government has acknowledged that purported detainee assessments were leaked to Wikileaks, but it has neither confirmed nor denied whether any particular report on Wikileaks is an authentic and official Government document. See Resps.' Response to Pet'r's Emergency Application for Immediate Access to All Publicly Available Wikileaks Documents Relevant to Pet'r's Case at 3-5, Dkt. #376, Paracha v. Obama, Civ. Action No. 04-2022 (June 15, 2011). Moreover, petitioners' counsel in those cases are authorized to have access to certain classified information concerning their clients and have signed non-disclosure agreements obligating them to take specific steps to protect potentially classified information. Under those circumstances, all purported detainee assessments appearing on Wikileaks must be treated by petitioners' counsel as 'potentially' classified documents, in light of counsel's non-disclosure obligations, the Government's acknowledgement that purported detainee assessments were leaked to Wikileaks, and the fact that cleared counsel's use or dissemination of such assessments could be viewed as confirmation of their authenticity or classification. Id. at 4-8. Here, in contrast, the email does not purport to be a Government document, the Government has not acknowledged that any classifiedinformation has been leaked in the private company's emails posted to Wikileaks, and plaintiffs' counsel has not been authorized to have access to classified information or signed a nondisclosure agreement. |
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Name(s:) |
Stuart Delery, Ronald Machen, Elizabeth Shapiro, Judson Littleton |
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Title: |
Acting Assistant Attorney General, United States Attorney, Deputy Branch Director, Trial Attorney |
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Agency(ies): |
Department of Justice, Civil Division, Federal Programs Branch |
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Concerning: |
Mobley versus CIA FOIA, Global Intelligence Files, Stratfor, GI Files |
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Url: |
Url Link
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Title: |
Re: Insight- Sharif Mobley |
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Author: |
Scott Stewart, Aaron Colvin, Fred Burton |
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Authoring or Creator Agency: |
Stratfor |
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Concerning: |
"Mobley versus CIA FOIA, Global Intelligence Files, GI Files, Stratfor |
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Archive Link |
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