A new lawsuit, which I filed last week under the Freedom of Information Act, attempts to force the release of records on the sex of Conan the dog, which have been classified by the US government as a national security secret.
Conan is a special operations military dog who participated in the raid to kill Abu Bakr al-Baghdadi, a top ISIS leader. Following the death of al-Baghdadi, the sex of Conan became a hotly debated topic. When presenting the pooch with a medal, Donald Trump used male pronouns. Reporters quickly noted that Conan was actually female after a White House official told them so. ABC News then reported that Department of Defense officials insisted the dog was in fact male, and the Guardian reported that both a White House official and the US Special Operations Command had told them the same.
The lawsuit, which you can read here, attempts to force the government to release veterinary records that would settle the debate once and for all.
Conan is a Belgian Malinois canine assigned to Delta Force, an elite special operations unit inside of Joint Special Operation Command (JSOC). The undoubtedly good dog's veterinary records would contain information about its sex, as well as information about how Conan recovered from injuries sustained during the Al-Baghdadi raid. (“Conan was very badly hurt, as you know," said Trump. "They thought maybe he was not going to recover. He recovered actually very quickly and has since gone on very important raids.”) Instead of turning over these public records when asked, though, US SOCOM, which oversees JSOC, responded with a link to a news article that described Conan as a male. And after being challenged over their refusal to release the documents, SOCOM declared the records a national security secret.
While the Freedom of Information Act allows the executive branch and its designees to protect a class of documents from disclosure, the designation is not absolute. Under classification law, “information shall not be classified in order to conceal inefficiency, violations of law” or “to prevent embarrassment to a person, organization, or agency.” According to Lauren Harper, the director of public policy at the National Security Archive, a non-profit research institute that specializes in national security, “JSOC classifying the sex of a dog as a national security secret is beyond over broad and a distortion of classification protocol. It’s a prime example of why we need to fundamentally re-examine the classification system.” (Last week, Trump declared every single conversation with him “highly classified,” which Harper described as a “loosey goosey and unjustifiable view of the expansiveness of executive privilege.”)
On top of declaring the sex of Conan a national security secret, SOCOM issued a Glomar response claiming that it can “neither confirm nor deny the existence or non existence of records,” because even confirming their existence would endange national security. (Glomar is a reference to the name of a ship; after the CIA commissioned it to find a Russian nuclear submarine, it also successfully blocked release of records related to Glomar by arguing that even acknowledging its relationship with the ship would compromise national security.) Glomar denials, though, cannot be applied to documents that have been officially acknowledged—by the president on the White House lawn, for example, or on Twitter.
The Trump administration, of course, is hardly the first to abuse classification in an attempt to shield records from disclosure. According to Kel McClanahan, the executive director of National Security Counselors, a firm that specialises in national security cases, all an agency has to say in court is that “ someone with the authority to make the classification decision made it and with very few exceptions, the courts will defer to that.”
At its core, he said the classification system “relies on the good faith of agencies to not improperly withhold information.” The presumption that agencies are acting in good faith, though, has been eroding for a long time, and especially quickly over the last five to 10 years. McClanahan describes it as an existential problem with existing case law that is “out of sync with the spirit of the Freedom of Information Act.”
US SOCOM did not return a request for comment.
Freddy Martinez is a Washington, DC-based policy analyst focused on access to information and government transparency. His work focuses on policing, public records, and surveillance technologies.