Project On Government Oversight (POGO) v. Ashcroft
This case challenged the retroactive classification of information related to whistleblower Sibel Edmonds’ allegations of wrongdoing in an FBI translation unit. Public Citizen, representing the Project On Government Oversight (POGO), filed suit against then-Attorney General John Ashcroft and the U.S. Justice Department (DOJ) for retroactively classifying the information. The suit alleged that the retroactive classification was unlawful and violated POGO’s First Amendment right to free speech by imposing a prior restraint on POGO’s ability to communicate important information to the public.
The information at issue was presented by the FBI to the Senate Judiciary Committee during two unclassified briefings in 2002. The information was referenced in letters from U.S. Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) to DOJ officials. The senators’ letters were posted on their Web sites but were removed after the FBI notified the Senate in May 2004 that the information had been retroactively classified.
During a June 2004 Senate Judiciary Committee hearing, Ashcroft defended the decision to retroactively classify the information, claiming that its further dissemination could seriously impair the national security interests of the United States, even though for more than two years the information was widely available to the public. Throughout the litigation, POGO had offered to dismiss the suit if the DOJ stated that POGO could discuss and disseminate the letters without fear of prosecution, but the agency refused to do so and instead claimed that POGO lacked standing to maintain the suit because the threat of criminal sanctions did not injure POGO. On the eve of the hearing on the parties’ cross motions for summary judgment, the Justice Department reversed its position and admitted that the information it had retroactively classified could be released to the public.