You Call It "Torture"; We Call It "Coming Into Possession of Classified Information"

Marty Lederman

Why can't Majid Khan have a lawyer, according to the Department of Justice? Because he might tell the lawyer how he was treated by the U.S. government. Think about that for a second.

The theory of the government's case here is contained in the remarkable tenth paragraph of the Declaration of Marilyn Dorn, CIA Information Review Officer. Dorn writes:

Information relating to the CIA terrorist detention program has been placed in a TOP Secret/SCI program to enhance protection from unauthorized disclosure. Because Majid Khan was detained by the CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques, that is classified at the TOP SECRET/SCI level.

Joe Marguiles, quoted in the Post article, is right: This goes beyond Orwell into Lewis Carroll territory, topping the formidable list of jaw-dropping Bush Administration euphemisms.

Khan "came into possession" of top secret classified information, eh? And how might that have happened? Part of his job at the CIA? A leak from a rogue CIA employee? By finding a lost memo sitting around some blind alley somewhere?

Or is it, perhaps, that he "came into possession" by virtue of the fact that he is the "classified information"? That is to say, it was the CIA's torture of Khan -- sorry, its "application of alternative interrogation techniques against him" -- that was how Khan "came into possession" of our most closely guarded secrets.

As DOJ sees it, Khan can't have a lawyer because of the risk that he'll tell the lawyer about that classified info that he now "possesses." (Here's the DOJ Brief.)

This argument apparently presumes -- is fundamentally predicated on the notion -- that we could lawfully prevent Khan from announcing to the world the manner in which the U.S. Government has treated him. But is that right?

Of course, the CIA, like other intelligence agencies the world over, is legally authorized to do certain nasty things to people outside our borders. And our intelligence agencies in fact do many things to such people that go close to or over the legal limits. There is ususally very good reason for keeping secret the CIA's tactics and methods. And as a general rule, it makes perfect sense that the agency's sources and methods are presumptively classified under U.S. law. Thus, if the CIA lets you in on those secrets -- say, because you are employed by the agency, or you are a Senator overseeing the agency, or a judge adjudicating a dispute -- it can ordinarily condition your access on a promise that you won't publicly reveal the secrets. (See generally Snepp.) (I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques. But for the purposes of this post, I'll assume that there are valid reasons to classify certain information about what the CIA has actually done in particular cases -- an assumption that in turn depends in part on the contested assumption that the CIA's actions were lawful.)

But even if the classification itself were valid, can it really be the case that the persons against whom the CIA employed its methods may be prevented from disclosing such historical facts to the public?

There is not, to my knowledge, any statute purporting to restrict such publication. Indeed, at least to the extent that the writer's audience includes the U.S. public, I would assume that the victim of U.S. government actions has a First Amendment right to publish the story, even if he is an alien abroad (see Lamont). (Perhaps there's a Sixth Amendment right to counsel implicated, too, but I'm less interested in that just now.)

So, for example, if and when Khan is released from U.S. custody, he will be free -- both legally and as a practical matter -- to publicly describe his treatment at the hands of the CIA, even though a CIA employee, or Senator overseeing the agency, might not be likewise free to do so because of the classification. Indeed, several CIA detainees have publicly told the stories of their detention and interrogation, including the book-length treatment by Moazzam Begg and the declaration, in the Khan case itself, of Khaled al-Masri, who was held with Khan in the "Salt Pit." We could not detain Khan because he threatened to reveal what the CIA did to him -- that would be an impermissible prior restraint. (This information does not, in other words,fall within one of the small handful of categories of information -- such as the direction of future troop movements (see Near v. Minnesota) -- whose publication the government may unconditionally prohibit.)

Therefore, even if Khan is legally detained for other, valid reasons, it seems to me that we cannot use the fact -- the fortuity -- of his detention as an excuse for preventing his public speech that would otherwise be constitutionally privileged.

Am I missing something? Are there other cases in which a government has been permitted to restrict, say, inmate speech because of a risk that the inmate will reveal classified information about the way in which he has been treated by the state? Has the issue ever even been addressed in court cases? Thanks in advance for any insights.
Posted 2:54 PM by Marty Lederman [link]