Saturday, November 04, 2006

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.


I don't have a direct answer to your question, but, myself, I cannot escape the notion that the difficulties in looking at these issues have been compounded by Bush Administration, in the sense that the legal part of our Nation's Counterterror strategy has been a victim of a long string of failed gambits. Had the Administration tried to work openly with Congress on a lot of these matters, rather than continually assert the rights of Executive Authority, we might not be in the state we are in, now, after this brinksman approach.

One problem that we might all have avoided is a tension between thinking about what might make good law in association with sound counterterror strategy and choosing how to think about what the Bush Administration did during the period before the detainee detention act was pass.

In other words, we cannot have a dispassionate and probative discussion about how to handle these issues because we have to deal with the follow (as reported by Suskind at Time magazine):

"The problem is not really with classified information. Most of what these captives told us is already common knowledge or dated; the U.S. hasn't caught any truly significant players in two years. However, discovery in such a case would show that the President and Vice President were involved in overseeing their interrogations, according to senior intelligence officials. *Subpoenas on how evidence was obtained and who authorized what practices would go right into the West Wing.*"


Meanwhile, have you seen that FOX "News" had one of their reporters undergo waterboarding, in order to start desensitizing the American public to such practices?

This is on the same week that O'Reilly made a whole segment out of denouncing the violence in our society and those who propagate it, in the form of "slaher" movies (like "Saw III" or whatever) that show seens of torture. His own "news" channel, within the week, shows their reporting undergoing waterboarding and, himself, calling it "torture". It truly is Orwellian.

I just want to go on record as having already invoked Humpty Dumpty in this context. B^) Always a pleasure to see your posts, Prof. (But, Henry, you make a compelling argument.) Peace.

"Am I Missing Something" you ask.

Just the fact that we are at war, and you keep talking about non-war ordinary civil and criminal matters not applicable to war.

Says the "Dog"

Amicus, I couldn't find the FOX video of waterboarding, but I did find a demonstration on CurrentTV.

Professor Lederman:

Do you have a link to the government response brief to which this Exhibit 1 Declaration was attached?

As to your question:

Why can't Majid Khan have a lawyer, according to the Department of Justice?

Does the Justice brief claim that Khan cannot have any lawyer or cannot have the self appointed lawyers from CCR who filed this Petition for Writ of Habeas Corpus? From the Declaration alone, it appears Justice is simply arguing that the identities of allies, locations of Khan's detention and methods of interrogations are all classified Top Secret and that the CCR lawyers will not qualify for this classification. There is nothing unusual, nevertheless Orwellian, about such an argument.

The fact that the Government risks disclosure of this top secret information if Kahn is released at some future time is completely irrelevant to the argument that CCR attorneys should have access to Khan and this information while Khan is under detention.

The more interesting question is how a court will find jurisdiction to even hear this petition after Congress reversed Rasul stripped habeas jurisdiction over alien enemy combatants in enacting the MCA. Does Justice raise this issue in their brief?

"Am I Missing Something" you ask.

Just the fact that we are at war, and you keep talking about non-war ordinary civil and criminal matters not applicable to war.

That we are at war is hardly clear. AG Gonzales says no. I've been asking my congresscritters that; they don't know, only that we are in something that "feels like a war".

Where the "war" looks more like an attack by the Bushies on the rest of us, yeah, "ordinary civil and criminal matters are not applicable".

That is a powerful WP article -- the press, limitations notwithstanding, has served a valuable purpose the last few years.

Morning Edition, October 16, 2006 · Steve Inskeep talks to Bill Goodman, legal director at the Center for Constitutional Rights, about what happens after President Bush signs the Military Commissions Act of 2006.

Goodman plans to argue that despite Congress' clear intent written in the statute, that the MSA is not retroactive in effect and will not effect the petition CCR filed just before the law went into effect.

It's currently a "Top video" at the Fox "News" website. The "reporter" was Steve Harrigan.

If there is some highly effective interrogation fandango that ought to be kept out of the al-qa'ida training manuals, then perhaps there is a case to be made to keep it out of open court / out of view. The question for experts is how much is the premise true. Frankly, there is a lot of information freely available about interrogation techniques and good techniques do their work whether you know them in advance or not, arguably, so it would pay to hear more from those who 'do it for a living', before making a decision.

It cannot be reasonable that a single government entity (the Executive, the Sec Def) be responsible both for drawing up the rules and seeing to it that they are adhered to. Everything we know suggests that wishful thinking of this kind almost invariably results in abuse and disgrace of some kind.

Either a person has a right to challenge whether the rules were followed (perhaps not in open court?) or someone else, independent, has the charge to see to it that their complaints are adequately addressed, in a way that keeps "the system" from being turned into a circus. I can't think of too many other options, except maybe a system whose rules are so simple (a standard set so high?) that violation is almost self-evident. Whatever the case, maybe the hardest part is fashioning what the redress might be, if detention is found to violate the established rules.

As for what happened under Bush before "the clarity" of the Detainee Bill, we all have to ultimately decide
1. To pardon Bush/Cheney (hence the campaign to make it all seem not-so-bad, to forestall the public support needed to prosecute the issue politically, or to push the false tradeoff that they must be let go so that others can be locked up)
2. To hold them to account
a) as part of a more consistent/comprehensive re-write (the legal aspects of the current MCA law might be adjudicated before that can politically be done, however, it would seem); or
b) as an exception to what is written

It is, as Professor Lederman says, Leis Carrollian. The government's argument is nonsensical because if the information were truly classified 1) the government de-classified it when it "disclosed" it to Mr. Khan by arresting him, imprisoning him and torturing him and 2) if the government did not de-classify it then the government employees who disclosed that information to Mr. Khan are themselves in violation of, inter alia, The Espionage Act. (I do not imagine that Mr. Khan was given a security clearance and agreed to be bound by the non-disclosure provisions of The Espionage Act.)

I do not think that First Amendment freedom of speech is the strongest argument. This seems to me to be a fundamental Due Process, and Fifth and Sixth Amendment issue.

There seems to be some misunderstanding. Lawyers for Gitmo prisoners have security clearances. They can't go to the prison without them.

Second, there is a scheme already in place to protect classified information. Everything a prisoner tells the lawyer is presumed classified, and may only be disclosed to the public after review and approval by the government.

Third, no lawyer may file any papers in these cases that have not already been reviewed by the government. All filings that include information from a prisoner have to be written at the secure facility (at which all attorney notes are stored, unless and until they are declassified).

* * * *

On waterboarding, plenty of people have noted the dissonance between the contention that we have to waterboard these hardened, well trained terrorists to get them to reveal the information and the contention that it's no big deal at all, as tortures go.

Again, you can see Robert's point about the lack of protection in the MCA when you loook at the DoJ brief:

Khan is currently detained at Guantanamo and is awaiting a Combatant Status Review
Tribunal (“CSRT”), a DoD proceeding in which a Guantanamo detainee’s status as an enemy combatant is reviewed and determined. During CSRT proceedings, a detainee is provided with notice of the unclassified factual basis for his classification as an enemy combatant, he is allowed
to present reasonably available evidence on his own behalf, and the tribunal members then make an independent determination as to whether the detainee should be designated as an enemy combatant.

So much for having counsel from the get go or having your wife send you your birth certificate. :) All this time, and we haven't even designated this guy, referred to in the CIA officer's declaration as an alien terrorist leader, as an enemy combatant.

So, the steps to eternal incarceration without any court proceedings are:

1. Make sure that detainees are captured and held in a Top Secret/SCI program, thereby classifying the factual basis for his future designation as a combatant, and removing the ability of independent counsel to have access to such evidence in order to appeal the decision of the "CSRT."

2. Hold them without determining their status in a "CSRT" for an indefinite period while legislation is made more specific and retroactive.

3. Use that legislation to specifically deny the detainees the ability to obtain any hearings in district courts unless they pertain to constitutional or procedural problems with the status review process.

4. Never initiate the status review process.

It's not just Orwell and Lewis Carroll. It's positively Biblical:

1 Samuel 27:9: And David smote the land, and left neither man nor woman alive....

1 Samuel 27:11: And David saved neither man nor woman alive, to bring tidings to Gath, saying, Lest they should tell on us, saying, So did David, and so will be his manner all the while he dwelleth in the country of the Philistines.

"Lest they should tell on us...."

I would always rather be happy than dignified.
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