Georgetown law professor Martin Lederman wrote a helpful take at Just Security, a national security law and policy blog, on the legal stakes of Purdue University’s recent decision to destroy video of Bart Gellman’s lecture on Snowden and investigate journalism. (We’ve since endeavored to reconstruct the lecture using audio and the original slides.)
Lederman, who served as a deputy assistant attorney general in the Obama administration’s Department of Justice from 2009 to 2010, addresses three crucial questions at play in Purdue’s decision: (1) Was any of the information on Gellman’s slides still classified? (2) If yes, should it be? (3) If the information remains classified, is Purdue legally obliged not to disclose it, “even in the context of a lecture that uses slides of materials that are widely available online?”
The answer to Lederman’s first question, as Gellman himself acknowledged in the Q-and-A at Purdue, is yes—many of the slides displayed are still highly classified.
The answer to his second question, however, is more complex. Based on the standards for classification and declassification set out in Executive Order 13526, Lederman concludes that while there may “remain a national security interest in prohibiting employees and contractors from disclosing additional classified information” related to the Snowden documents “but not contained therein”—for example, the extent to which the programs described in the slides are still in operation—it’s harder to argue that the information itself, which is widely available online, should still be classified. Lederman:
Prohibiting government employees from accessing the Snowden documents on the Web? Prohibiting universities with government grants from allowing speakers, students and faculty to display and discuss the documents themselves, and the particular information contained in them? Unless I’m missing something, it is very difficult to see how such activities “reasonably could be expected to result in damage to the national security,” when everyone else in the world may freely access and use such documents. And if such uses of the information could not “reasonably . . . be expected to result in damage to the national security,” then the Executive Order requires declassification of that publicly available information.
Finally, putting aside whether the slides should be classified and acknowledging that, at present, they are, Lederman considers whether the law prohibits Gellman or Purdue from displaying and disseminating them.
As regards Gellman’s use of the slides, Lederman is unequivocal:
No. Members of the public can freely use, and disseminate, the information found in the documents that are widely available online, without breaking any law, even if the information in the documents is classified.* Therefore Purdue’s accusation that Gellman has engaged in “civil disobedience” is absurd.
Purdue, however, is a different story. Like many of its peers, Purdue has agreed to abide by further regulations as a prerequisite for engaging in classified research on the government’s behalf.
According to Lederman, Purdue and its lawyers overestimated their obligations under the Department of Defense’s National Industrial Security Program (NISP). While Purdue is certainly and properly bound to prevent the disclosure of information pertaining to its classified contract or other classified information obtained in the course of executing that contract, “it’s unlikely the government intends to use its grant leverage to restrict what the university’s faculty, students and visitors could lawfully do in the absence of the contract”—i.e. access, read, talk about, and display the publicly available Snowden documents. “Indeed, if the government did try to do that,” says Lederman, “it would raise very serious First Amendment concerns.”
It is perhaps understandable why Purdue, or even some DoD contracting officials, might read section 1.02(b) of the [NISP] Manual to restrict a contractor’s use of classified information that it has lawfully obtained from independent sources — information it would have obtained even absent the government contract. But that reading would lead to implausible and probably unconstitutional results, as the Purdue example demonstrates. Can it truly be the case, for instance, that Purdue students and faculty without security clearances cannot read and analyze and share the Snowden documents?
Of course not.
Lederman’s careful legal analysis—which can and should be read in its entirety—confirms what Gellman and I suspected: that Purdue overreacted, that its excessively zealous interpretation of DoD rules jeopardized not only academic freedom but the First Amendment as well.
But Purdue is not the only culpable party here. If we are to ensure that what happened at Purdue will not happen again, the government must, as Lederman urges, “clarify to university contractors” that DoD regulations do not impose restrictions on the use of information lawfully obtained from independent sources.
Purdue made a mistake. May that mistake be a lesson, not a precedent.
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