“WikiLeaks Documents Explosive”: The Potentially Perverse Effects of Scholars’ Being Forced to Look to Third Parties Rather Than State Institutions for Classified Material

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears . . . All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.²

Federal and state institutions in the United States can be leery of providing researchers with unrestricted access to archival materials, especially when those materials relate to contentious or embarrassing events or historical periods. Following the terrorist attacks on September 11, 2001, that leeriness blossomed into outright distrust: in 2001, for example, then Attorney General John Ashcroft instructed the heads of all federal departments and agencies that, when faced with a records request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, they should effectively err on the side of refusing to disclose documents.³ Ashcroft’s policy explicitly superseded an existent policy⁴ establishing a “presumption” in favour of disclosure. Although that presumption was reinstituted by President Barack Obama,⁵ there is now some evidence that agencies are still refusing to release any records that might detail internal administration decision-making.⁶ Moreover, even where state institutions are willing to release documents, given the nature of government bureaucracy it can take time and resources for scholars to obtain needed materials.

In this essay, in the context of explaining how I came into possession of many of the most important or revealing documents I described in my dissertation, I address one of the effects of the official reluctance to release documents: the increasing importance of independent third-party collectors and aggregators as critical research sources. With the development of the Internet and the concurrent rise of such Web sites as Talking Points Memo, Huffington Post, The Daily Beast, the Drudge Report, the gossip-oriented Gawker, and perhaps particularly and most recently WikiLeaks, it has become far easier for researchers looking for documents to go to these third-party sources rather than to approach governmental institutions directly. One perverse result of governmental reluctance or hesitation to release official documents is thus to add third parties, who may have their own motives, into the research process.⁷ This in turn may require scholars to base their research in part on material of uncertain provenance, running the risk of injecting increased uncertainty into the analyses of critically important government policies or historical events. Rather than protecting national interests, continued adherence in the WikiLeaks era to secretive policies may result in scholarly reliance on and dissemination of incorrect information that is harmful to national interests—not to mention the interests of posterity. Of particular interest to socio-legal scholars is the effect that this potential distortion of data might have on the development and understanding of statutes and even constitutional provisions.

Courts and legislatures have regularly looked to socio-legal data, such as what impact race has upon administration of the death penalty in the United States⁸ or the extent and effect of violence against women,⁹ in order to understand the import and impact of various statutory schemes. In the absence of reliable information, the provenance of which all parties respect, analysis of the effects laws have on society—by courts, legislators, and socio-legal scholars—will suffer.¹⁰

Conspiracists and Conspiracy Buffs

In retrospect, my trip to southern California to research my dissertation seems somewhat surreal. In my first two years as a doctoral student at Brown University in Providence, RI, I had settled on a fascinating subject for study: the rise of ultra-conservative, “Americanist” organizations in the mid-twentieth century, the start of the era of modern US conservatism. “Americanists,” as they wished to be called, were members of various ultra-conservative, anti-communist, and even conspiracist movements that combined beliefs in religiosity...