Our Classification Pathologies

Marty Lederman

One of the high-level CIA detainees, Majid Khan, recently met over eight days with his attorneys from the Center for Constitutional Rights, and told them of the "time he spent in CIA custody." In connection with the Mukasey confirmation vote, his attorneys quite understandably wish to let Congress know how our government has treated their client. But as a condition of being able to speak to their client in the first place, the government required them to agree not to reveal what their client told them, because (as they explained in a letter to Senators today) "everything we learned from our client is presumptively classified."

I've said this before but it's worth saying again: This is absurd, and, assuming that Khan or his attorneys have any First or Sixth Amendment rights (a hard question, perhaps), it's likely unconstitutional, too. Even if it made sense to classify the CIA techniques in the first place, once the government "reveals" its classified information to private persons outside the government, the classification has been compromised. Classification rules restrict what government officials may say. And they restrict what can be said by those (e.g., judges, opposing counsel) who are given the information only on the condition that they not disclose it. But Khan himself did not "ask for" this "information," or agree to any conditions on disclosure before "receiving" it. Therefore, the only reason he cannot publish an account of what the CIA did to him on the front page of the New York Times (or ask his lawyers to do so) is not that he is subject to classification restrictions, but instead that the government has gagged him as part of its detention practice.

If Khan were ever freed -- either because he was wrongly detained, or because the conflict ends, etc.; or if he were put inside the criminal justice system; or if he were detained in the United States; or if he were a U.S. person; he would be able, as a practical and as a legal matter, to publicly reveal what the CIA did to him. (Imagine a criminal defendant raising a defense about being tortured by the state and the state responding that the methods of interrogation were classified . . . .)

Why should that fact change just because Khan is an alien being held in a wholly-U.S.-controlled facility a few miles off the coast of Florida? Here's what I wrote about this previously. It is still relevant -- except that now the Senators have the ability to call a halt to this absurd classification nonsense:

[E]ven if the classification [of the techniques] were itself 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.

Posted 5:30 PM by Marty Lederman [link]