an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We could tell you how we torture people, but then we'd have to kill you
According to this Washington Post story, the Bush Administration has argued that persons detained in secret CIA prisons should not be permitted to reveal what techniques were used on them to get them to talk, even to attorneys who are trying to determine if the Administration engaged in cruel, inhuman, or degrading treatment, or otherwise broke the law.
The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release -- even to the detainees' own attorneys -- "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26.
Conveniently, keeping secret what the CIA has done to detainees makes it difficult, if not impossible, ever to hold government officials accountable for breaking the law. This is consistent with the Administration's strategy in the Military Commissions Act of 2006: preserve the veneer of compliance with law but remove all external checks or judicial remedies that might determine whether the law has been violated and thus hold the executive accountable. President Bush informs us, with increasing implausibility, that all of the interrogation techniques we've been using are perfectly legal and that we do not torture. His Justice Department is now doing everything possible to make sure that we never catch him in a lie. Posted
by JB [link]
Like the war meme itself, this brazen abuse of "national security" has got to go. There was no invading force ready to follow up on the attacks of nine-one-one, and had we acted differently we would today have many more friends in the Arab world in sympathy with the murders committed that day. So too with this latest claim; what utter nonsense. As used, running a red light is a threat to national security, since it represents that one-percent chance that I might strike a citizen-pedestrian. Time to send Humpty Dumpty packing and get back to occasionally using words by their plain meanings. Funny; you'd think that's what the Scalia's and Cheney's of the world were barking for all this time.
"President Bush informs us, with increasing implausibility, that all of the interrogation techniques we've been using are perfectly legal and that we do not torture." I disagree. The implausibility of these statements is not increasing because they cannot become any more implausible than they already are. They have been obvious blatant lies literally for years, so why pull punches? What puzzles me is why he tells them? Anyone who could be fooled by them would support him even if he told the truth.
There are nations that use national security classifications to protect themselves from embarrassment, even liberal democratic states. But the sweep of this posture is breathtaking. It proposes to deny effective legal representation altogether, and it is using security classifications to shield conduct which is in its essence criminal. Seen this way, we are talking about very few states in modern history which have gone so far, most of them totalitarian. In the end does the fact that the Government takes this posture not constitute further evidence of a joint criminal enterprise designed to evade the protections of Common Article 3? I think it would only be criminal conduct if it succeeds, but the request itself is breathtaking. The lawyers involved here need to be hauled before a professional responsibility committee for discipline.
Mr. Howard, there is a difference between the statements of a former prisoner, and the statements of a current prisoner. A current prisoner has some kind of legal right -- even if its only DTA review of a CSRT decision -- and can force the government to respond under oath to torture allegations.
An ex-prisoner can only claim money damages, and his suit will be fought on security grounds anyway. (As with al Masri, Arar, etc.)
As everyone knows, this isn't actually about preventing information from getting out. After all, it's entirely likely that prisoners have told eachother their stories, and so the next guy who gets released to Saudi Arabia will have heard what happened to Khan. If that released guy gets a call from some AQ guy just asking a couple of questions about Khan, then the secret is all the way out.
No, it's about deniability in the US, before US courts, of conduct that was criminal at the time and is criminal now.
How can they stop people from saying what happened to them while in custody?
Easy. By denying them habeas and never bringing them before any sort of tribunal, just like the MCA allows the gov't to do. Prisoners like this are *why* there's an MCA. (Rhymes with "CYA.")
A Republican victory in 2008 would mean that the current prisoners would remain in custody until 2012. Etc. (I am very skeptical of the Congress's ability, short of impeachment, to make any headway against a Cheneyesque White House.)
We forget that the more things change, the more they stay the same. John Adams, one of the primary proponents of American Independence was the defense counsel to the British Soldiers who killed people in the "Boston Massacre." Thomas Paine, an opponent of government and a man oft cited by conservatives for his famous statement "That government is best which governs least" also said "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." We can not be secure in our own rights and freedoms, if we don't protect those of our enemies.