BRIEF: Potential Use as "Anti-American Propaganda" Not a Valid Reason to Classify Information

The U.S. government should not be permitted to classify information simply because it could be used to stir anti-American sentiment abroad, the Brennan Center for Justice and the Electronic Frontier Foundation argued in an amicus brief filed today.

Allowing the U.S. to classify information based on the argument that our enemies could use it as "anti-American propaganda" contradicts Executive Order 13526, which prohibits the classification of information to conceal misconduct or prevent embarrassment, and would create a limitless basis for future classification, the brief argues.

"The U.S. has an overclassification problem," said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. "Too often, the system is used to conceal government misconduct, from illegal warrantless wiretapping to secret CIA torture programs. The government's propaganda argument would legitimize this practice."

"It's vital that courts recognize that the government's classification authority has limits," said Mark Rumold, staff attorney at the Electronic Frontier Foundation. "Left unchecked, the ability to hide unflattering information or illegal conduct from the public threatens to undermine public debate and our democratic processes."

The brief was filed in Jihad Dhiab, et al v. Barack Obama, et al, a case in which former Guantanamo Bay prisoner, Abu Wa'el Dhiab, sued the U.S. to stop force-feedings. Evidence in the case included video recordings of the force-feedings, which were filed under seal because they were classified. Several press outlets intervened and requested to see the videos, and the District Court judge ordered them unsealed. The government is now appealing that decision on the grounds that our enemies could use the videos to stoke resentment against the United States.

Read the brief here.

For more information, contact Seth Hoy at seth.hoy@nyu.edu or 646-292-8369.