This came up a couple of weeks ago, but the news was initially reported on the Saturday before the election, so it was largely lost in the shuffle. The WaPo had an editorial on the subject today, which is as good a reason as any to revisit the issue.
Buried within a recent government brief in the case of Guantanamo Bay inmate Majid Khan is one of the more disturbing arguments the Bush administration has advanced in the legal struggles surrounding the war on terrorism. Mr. Khan was one of the al-Qaeda suspects who was detained in a secret prison of the CIA and subjected to “alternative” interrogation tactics — the administration’s chilling phrase for methods most people regard as torture.
Now the government is arguing that by subjecting detainees to such treatment, the CIA gives them “top secret” classified information — and the government can then take extraordinary measures to keep them quiet about it. If this argument carries the day, it will make virtually impossible any accountability for the administration’s treatment of top al-Qaeda detainees. And it will also ensure that key parts of any military trials get litigated in secrecy.
I’m fairly certain that’s the point.
It’s as clear a through-the-looking-glass argument as the Bush administration has ever offered. Khan was one of 14 high-value detainees transferred in September from a secret CIA “black” prison to Guantanamo Bay. A lawyer with the Center for Constitutional Rights, which represents many detainees at Guantanamo, is seeking emergency access to him, but the administration is denying access — arguing that the tortured detainee might talk about the abusive interrogation techniques, and thereby divulge a national security secret.
In other words, by torturing someone, administration officials are inadvertently sharing state secrets (i.e., the “alternative” interrogation methods themselves). Therefore, the Bush gang believes they have the power to torture suspects and the power to stop detainees from talking about it, even after the suspect has been released.
Joseph Margulies, a Northwestern University law professor who has represented several detainees at Guantanamo, said the prisoners “can’t even say what our government did to these guys to elicit the statements that are the basis for them being held. Kafka-esque doesn’t do it justice. This is ‘Alice in Wonderland.’ ”
As the WaPo editorial put it:
The trouble is that at least some of the secrets the government is trying to protect are the very techniques used against people such as Mr. Khan — and its means of protecting them is to muzzle him about what the CIA did to him. CIA official Marilyn A. Dorn said in an affidavit that Mr. Khan might reveal “the conditions of detention and specific alternative interrogation procedures.” In other words, grossly mistreating a detainee now justifies keeping him quiet.
The problem with this argument is not just its Kafkaesque sheen. If the courts accept it, it would have vast practical implications. The integrity of any military trials of the high-value detainees will depend on their excluding evidence obtained by unduly coercive means. By the logic of the government’s argument, however, all of that litigation will have to take place in secret. Detainees are also supposed to be able to appeal their status as enemy combatants to the federal appeals court here in Washington. The government’s logic would all but assure that the bulk of any such appeal would be secret as well. So accepting this theory would mean that no claim of torture could be resolved in a transparent and accountable fashion. Given the importance of open trials for the high-value detainees, it’s hard to imagine a principle that would more thwart the effort to bring them credibly to justice.
Kleiman called this approach “brutally insane.” Given the circumstances, I can’t think of a better description.
Ultimately, I think Rege had the right idea: “I think the torturers should be prosecuted for releasing classified information to unauthorized persons.”