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Access to Memos Is Affirmed

Classified Status Can't Be Changed

By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, February 23, 2005; Page A17

The Justice Department has backed away from a court battle over its authority to classify and restrict the discussion of information it has already released, handing a local advocacy group a victory by granting it explicit permission to publish letters written by two senators that contain the contested information.

The case was considered a potential test of limits to the government's power to restrict access to information in the public domain on national security grounds. Former attorney general John D. Ashcroft had strongly defended the practice in this case by likening it to putting "spilt milk" back in a jar instead of simply saying, "well, it's spilt."


As attorney general, John D. Ashcroft, center, argued that information in the public domain could be restricted for national security reasons. (Ray Lustig -- The Washington Post)


Friday's Question:
It was not until the early 20th century that the Senate enacted rules allowing members to end filibusters and unlimited debate. How many votes were required to invoke cloture when the Senate first adopted the rule in 1917?
51
60
64
67


But the Justice Department, which got new leadership this month when former White House counsel Alberto R. Gonzales took the reins, said in a Feb. 18 letter that the previously public letters by the two senators are "releasable in full."

A spokesman for the Justice Department, Charles Miller, said he was unsure whether Gonzales played a role in the decision.

At issue in the dispute were efforts by the Project on Government Oversight (POGO), an independent watchdog group, to publish on its Web site letters written in the summer of 2002 by Sens. Patrick J. Leahy (D-Vt.) and Charles E. Grassley (R-Iowa) to Ashcroft and others seeking an explanation for the FBI's alleged mistreatment of a whistle-blower, Sibel Edmonds.

Edmonds, a contract linguist, had been fired in March of that year after complaining that a Turkish American co-worker had contact with an organization targeted by an FBI terrorism surveillance program and that the linguist had mistranslated transcripts of classified conversations mentioning that organization. Edmonds did not take her dismissal quietly, and her case attracted the attention not only of POGO, but also of the American Civil Liberties Union and other whistle-blower support groups.

The FBI briefed staff members of the Senate Judiciary Committee last July on its own inquiry into the case, seeking no security controls on the information it discussed. Leahy and Grassley wrote their letters demanding more information in June, August and October 2004 and posted them on their Web sites. POGO obtained copies and posted them on its own Web site.

After Edmonds was asked to testify in a civil suit against the government related to the Sept. 11, 2001, terrorist attacks, however, the government sought not only to restrict her court testimony but also to clamp down on the dissemination of further information about her case.

The FBI contacted the Judiciary Committee in May 2004 to say, according to an internal committee e-mail, that it wished "to put all . . . staffers on notice that it now considers some of the information contained in two . . . briefings to be classified. . . . Any staffer who attended those briefings, or who learns about those briefings . . . should therefore avoid further dissemination."

Leahy and Grassley removed two of the letters from their Web sites, and POGO followed suit, although copies were then posted on other Web sites.

In its subsequent lawsuit, POGO said the senators' removal of the letters from their Web sites had provoked worry that the group might be prosecuted for disseminating classified information on its Web site, and the group said the Justice Department's "after-the-fact classification of public information . . . imposes a prior restraint that violates POGO's First Amendment right to discuss information it lawfully obtained."

The Justice Department initially sought to dismiss the lawsuit, arguing that it was reasonable for the government to try to stem further leaks about the Edmonds case after charting "more precise contours of the mosaic of information covered by" a state-secrets privilege. "Even assuming that some information was already public, that would not prevent defendants from classifying it later," the department said in a Dec. 23, 2004, court pleading.

The department also said POGO had no standing to sue, because the group could not prove the government had threatened to prosecute it for publishing the letters.

But Justice finally decided, shortly before a court hearing slated for yesterday morning, to say explicitly that the letters could be posted without fear of prosecution.

The letters had asked what the department was doing to investigate Edmonds's claims and what sort of guidance the FBI gave its linguists about their foreign contacts. The answer to the first question, evidently, was not much. The department's inspector general said in a heavily classified report -- released only in part a week ago -- that the FBI was lax in investigating her complaints and fired her partly because she made them.


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