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Justice Department CavesIn: Allows Publication of Retroactively Classified Information

Project on Government Oversight

Public Citizen

February 22, 2005

Justice  Department  CavesIn: Allows Publication
of Retroactively Classified Information

Lawsuit Challenged Classification of Public Information

WASHINGTON, D.C. – A hearing scheduled for this morning before U.S. District Judge John D. Bates was abruptly cancelled after the Justice Department gave up and admitted that the information it had retroactively classified could be released to the public.

Last June, the Project On Government Oversight (POGO) sued then-Attorney General John Ashcroft and the U.S. Justice Department (DOJ) for retroactively classifying information related to whistleblower Sibel Edmonds’ allegations of wrongdoing in an FBI translation unit.  The suit alleged that the retroactive classification was unlawful and violated POGO’s First Amendment right to free speech.

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 (click here). 

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.

“The fact that the Justice Department gave up on the eve of the hearing shows that this information was classified for an improper purpose,” said Danielle Brian, POGO’s executive director.  “If this information could ever have harmed national security, the Justice Department would never have caved in.”

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 and instead claimed that POGO lacked standing to maintain the suit because the threat of criminal sanctions did not injure POGO. The DOJ backed down when faced with the prospect of tough questions at the hearing by a federal judge. 

POGO was represented in the case by lawyers from the Public Citizen Litigation Group and the Institute for Public Representation at Georgetown University Law Center.

“Typically, classification of government-held information does not interfere with free speech because the information remains in the exclusive control of the government,” said Michael Kirkpatrick, an attorney with the Public Citizen Litigation Group. “This case was unusual, because the government classified the information after it was public. This after-the-fact classification violated POGO’s First Amendment rights, because POGO faced the threat of prosecution if it disseminated the information. POGO suspected all along that the information was classified not to protect national security secrets, but to stifle congressional oversight and shield the FBI from legitimate public inquiry. Apparently, POGO was right.” 

To view the Department of Justice’s letter reversing the retroactive classification and other documents from POGO vs. Ashcroftclick here.