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
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.
The logic of secrecy laws doesn't prohibit such restraint.
A while back, the gummint walked in ex post facto, said that public key encryptation (PKE) was "classified", and demanded that the PKE scientists not talk about such at symposia and the like on pain of arrest for divulging "classified" material; material they had developed independently and w/o gummint assistance.
And had Howard Mohr actually come too close to a working H-bomb design, you can bet your booties that the Progressive case would have snuffed the story (as it was, they were permitted to publish essentially because the same material had already reached the public in another forum; had that not occurred, the gummint may well have won on pre-publication suppression).
When it comes to "security", that trumps all ... and the gummint gets to say what constitutes "security" (see, e.g., Reynolds).
Marty, The government will likely claim statutory authority under the DNI's statutory obligation to protect "sources and methods." Regarding the government's willingness to impose classification restrictions on those who do not have a security clearance and are not government employees, look at the current AIPAC prosecution in the Eastern District of Virginia. --Kathleen Clark
The classification laws do not apply to either Khan of his attorneys.
Khan's attorneys are bound by the contracts into which they voluntarily entered.
As a legal matter, Khan has no rights (including First Amendment rights) under the Constitution as a foreign enemy combatant unless the Supremes reverse Quirin and create some out of whole cloth in the future.
As a practical matter, Khan cannot give press conferences because he is detained. If this terrorist is someday freed, he is can write a book on his experiences as you note others have done.
Meanwhile, the unclassified transcript of Majid's CRST hearing is readily available. The CRST not only took extensive evidence, but it allowed Majid to testify at length without redaction about his "torture."
If you want a review of the classified CIA interrogation of Khan before Khan is freed, contact the chair of the intelligence committee who has jurisdiction over this area.
As an aside, Khan is one of the many al Qaeda swept up a couple weeks after we captured and waterboarded KSM. Connect the dots.
I know this is not directly related but the restriction on allowing real circumstances to be presented in a legal case and trial don't to me seem to be new or solely related to government classification. Reading this post I was reminded of the California man that was convicted as a common drug dealer when in reality he was a seller of medical marijuana (prescribed mainly for the terminally ill as their pain grows and death approaches), a legal enterprise in California. The federal government prevented the jury in the case from being informed in any way that the defendant was practicing a completely legal and accepted business in their state. The trial and the jury were only allowed to consider the defendant as an alleged common street drug dealer. It was Kafkaesque. The jury members, after finding the man guilty and being informed that he was selling medical marijuana to those medically in need, were appalled and said they never would have convicted him if they had known that fact.
I repeatedly wonder at the alarm expressed here at the inadequacies of our laws, and especially the constitution, when it seems apparent that the inadequacies are of "men" rather than of laws. I've seen here a series of posts indicating the absurdity of calling for the passing of laws against torture when many such laws already exist. It's not the failure of laws (for the most part - I'm not disputing that there are major flaws in our laws, including the constitution) but the failure of malevolent and weak people to observe, abide by and enforce laws in a manner that was their intent and in the best interests of the nation and its people (despite the assurances otherwise).
The jury should have refused to convict even if it thought that the marijuana was sold to be used for pleasure or relaxation (horrors!). Better yet, everyone in the jury pool for a drug case should inform the judge beforehand that he will not convict, no matter what the evidence. What if they gave a drug war and nobody came?
I wonder how much work the word "victim" is doing his Marty's analysis.
I wonder about the Lamont case cited. Is this a reference to LAMONT v. POSTMASTER GENERAL, 381 U.S. 301 (1965)? That case dealt with the first amendment rights of US mail addressees, not their foreign correspondents. ("We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered. This amounts in our judgment to an unconstitutional abridgment of the addressee's First Amendment rights.") Is there another Lamont case? Is this typical for Marty?
I wonder if Marty knows that asking rhetorical questions isn't the same as making an argument. (See?)
Khan's attorneys are bound by the contracts into which they voluntarily entered.
According to the attorney's letter, "Under the present court order governing our access to our client and the applicable federal law concerning classified information, however, everything we learned from our client is presumptively classified."
I am referring to the page after page of Khan's unredacted whining that his detention conditions amounted to "torture."
from the transcript:
"Exhibit D-b. MAJID KHAN written statement of Torture for Combatant Status Review Tribunal taken March 2007 by PR3. [REDACTED].
For me, things got better [REDACTED], and [REDACTED] I am brought to Guantanamo Bay, Cuba. I swear to God this place in some sense worse than CIA jails. I am being mentally torture here [REDACTED].
Since I got here, I have tried to to cut my artery which goes through my elbow, on January 12th, 07 and again on February 22nd, 07..."
What happened from 2003-January 12, 2007? We don't know, as it was all redacted. Apparently Only 4 pages from his 12 page statement made it into the record unredacted (pages 22-26 in the transcript, so I am assuming a 1-1 ratio), and apparently only things which happened since the beginning of 2007, including several attempts at suicide.
Heck, if they wanted to blank out places and names for the missing 3+ years, they could have (as they did in the rest of the document), and left in the detainees allegations for that period (which are only alluded to as CIA prisons).
Marty, I'm wondering again what the support for the 1st amendment argument is. Would you kindly provide the cite to the correct Lamont case--the case I'm familiar with it clearly inapposite. What's the basis for asserting constitutional privilege for Khan's speech?