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Wednesday, December 13, 2006

ORCON Prohibits Classification of Embarrassing Information

ACLU has documents which cannot lawfully be classified to hide embarrassing information. [ Details ]

It is illegal to classify embarrassing information. ACLU should challenge the classification on the basis of ORCON restrictions prohibiting classification of embarrassing information. Section 1.8:

Sec. 1.8. Classification Prohibitions and Limitations.

(a) In no case shall information be classified in order to:

. . .

(2) prevent embarrassment to a person, organization, or agency;

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Here's what it was: The Permissibility of Photographing Enemy Prisoners of War and Detainees

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ACLU discloses there is a grand jury investigation related to information which the US government has inadvertedly disclosed. Once disclosed, the information cannot lawfully be suppressed; but can be the basis for other inquiry and subpoenas.

Please identify the name of the US Attorney requesting the documents be suppressed; their prior work in DoJ, and which office they were assigned while working on the DOJ Staff.

[Remainder of this is speculation; may be updated without notice]

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Guessing At What it Could Be

did not concern troop movements, communications methods, intelligence sources

The issue is not earth shattering, and appears to have been an over classification of a benign policy.

There may be something on the document that is linked to something that DoJ does not want disclosed, and may be a loose end they hoped war crimes prosecutors did not discover. Perhaps there is a type font, date of the letter, or an issue with a document that DoJ had previously denied existed, but if released would amount to evidence proving the US Attorney had lied or not fully complied with a Brady Request on another matter.

Follow-up: Indeed, Geneva compliance is measured in terms of whether policies did or did not fully implement the Geneva Conventions; and whether policies were or were not retroactively developed.

All "longstanding" concerns the ACLU has relate to: Domestic surveillance. The policy may be related to how information inappropriately captured or obtained is subsequently used, managed, or retained as it relates to other unintended consequences related to databases, information, and government abuse. However, this would contradict the ACLU assertion:

did not concern troop movements, communications methods, intelligence sources

ACLU current has documents related to prisoner abuses.

Possible issues:

___ Responses to public inquiries related to illegal use of personal information;

Follow-up: Yes, Prisoner photographs is personal-related information, and the Conventions explicitly reject the photography.

___ The issue of information security as it relates to inappropriate access by DoJ Officials;

Follow-up: Partially, information was reviewed by DoJ Officials who knew, or should have known, the photographs were not acceptable. Question is:

___ What was in the photographs taken, regardless legality of the photography

___ How many other photographs, even those that violate Geneva, have not been disclosed because they show evidence of other Geneva violations?

___ Policies and procedures related to responding to Brady requests when the information was not lawfully obtained through a lawful warrant;

Follow-up: Yes, Prisoner photographs are subject to subpoena.

Perhaps there's an office symbol, error in the FOIA redaction, or something about the document that DoJ had hoped would not be known.

Follow-up: Yes, Prisoner photographs, the subject of the Memo, is a potential war crimes issue. Adds up to series of abuses.

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More Than Embarrassment

ACLU could assume that the government is attempting to suppress evidence related to war crimes.

The ACLU has no duty to hide information that may be related to war crimes. The information appears to be of interest to German war crimes prosecutors and should be forwarded immediately to this address in Germany.

Follow-up: Yes, Prisoner photographs are a potential Geneva breach issue. Suggests there may be other concerns of other Geneva breaches.

Failing to disclose the information may be linked with DoJ knowledge that the conduct was not lawful; not with any concern about the prisoner rights or national security. This is not an "embarrassment" but a potential Geneva issue.

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Adverse Inferences

Follow-up: Yes, the below adverse inferences were right on.

Presume the effort to suppress it is related to an improper purpose. All information disclosed in the document, even if inadvertently, may be lawfully used but the ACLU for subsequent FOIAs. Recommend ACLU include in all FOIAs language from the disclosed document so that readers of the Intel Link system can identify similar documents, patterns of conduct, and other alleged illegal behavior the US Attorney and DOJ Staff hope to expunge from the public files.

You may conclude that the effort to suppress related to allegedly illegal activity is related to hiding other lines of evidence damaging to the White House, DoJ Staff, and the defense of US Government Officials related to allegedly illegal conduct 2001-2006. Most surprising, is despite the Military Commissions Act which would (illegally) immunize US officials for conduct 2001-2006, the US government hopes to suppress the information. We judge the information would be of interest to International war crimes prosecutors.

May presume that the policy guidelines demonstrate a pattern of conduct related to the DOJ Staff counsel and Legislative Liaison which would raise serious issues related to their legal advice, competence, and fitness to practice law.

Presume ACLU Gagged Because of War Crimes Evidence

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___ What specific legal consequences have been threatened if the document is released in full?

___ Is the document available on the ACLU website?

___ What's preventing ACLU from challenging the classification as a violation of Executive Orders; or that it has inappropriately classified something that is embarrassing in violation of ORCON?

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Follow-up: The pattern of secrecy should be examined in the context of what the US Government considers "classified," and what turns out to be illegal, war crimes and Geneva issues.

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Future Research

___ How closely did the DoJ public statements on the issue match the subsequent diclosures?

Answer: DoJ shot itself in the foot. By blocking release of the information, the ACLU's attention assured the issue would be disclosed, if not speculated upon. DoJ appears to not comprehend that the DNC controls Congress.

___ How reliable were the ACLU statements and evasiveness?

Answer: By eliminating all other options, the ACLU essentially helped disclose the war crimes related issue. Whether the issue was a war crime remains an issue of law and evidence.