"This goes beyond Orwell into Lewis Carroll territory."

[Theophylact]

I'm just going to post this in its entirety:

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."

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? Indeed, at least to the extent that their audience includes the U.S. public, I would assume that the victims of U.S. government actions have a First Amendment right to publish the story, even if they are aliens 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 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. 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. 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.

[no1_vern]

I, .... , I dont know what to say! I am completely flabergasted at the idea!

[Chuckiechan]

Who's the guy think he works for? The NY Times?

Sheesh!

Is this guy a US citizen?

[uethello]

Wait a second here! That Begg guy was just a teacher, there's no way he was ever in Gitmo, all they have there are trained enemy combatants caught in the heat of battle. I have that from an informed source right here on TIMO, so I know it's true.

Plus, America would never torture anyone who they didn't already know was guilty... right?

[Knothead]

Wait a second here! That Begg guy was just a teacher, there's no way he was ever in Gitmo, all they have there are trained enemy combatants caught in the heat of battle. I have that from an informed source right here on TIMO, so I know it's true.

Plus, America would never torture anyone who they didn't already know was guilty... right?

And the Bush fans continue to wonder why the rest of us refuse to bend over.

(A side note: I've noticed that uethello wields sarcasm like a man in a BS storm, employing a transparent raincoat. Heh heh heh, and right on, too. )

[uethello]

I do it for the children.

[cyphen]

If he isn't a US citizen, then i don't see what the issue is. No lawyer for enemies. Military tribunal. The article seems to imply he is indeed NOT an american citizen, and the military lists him as one of 14 high value detainees. Simple. No lawyer. military tribunal.

[pickel]

If he isn't a US citizen, then i don't see what the issue is. No lawyer for enemies. Military tribunal. The article seems to imply he is indeed NOT an american citizen, and the military lists him as one of 14 high value detainees. Simple. No lawyer. military tribunal.

Where were you brought up ??? EVERYBODY deserves legal representation. Are we not founded on the inalienable right that ALL men are created equal. If there's nothing to hide, give the man a lawyer.

[no1_vern]

If he isn't a US citizen, then i don't see what the issue is. No lawyer for enemies. Military tribunal. The article seems to imply he is indeed NOT an american citizen, and the military lists him as one of 14 high value detainees. Simple. No lawyer. military tribunal.

I agree with pickle, but not only that but I thought that the CIA employs only Americans.

[uethello]

OK, I'm an American. Now, I'm pretty sure when I go to a "brown" country I can safely throw someone to the ground and kick the crap out of them. My only question is... can I do the same to Europeans? This is assuming, of course, that I feel he/she is suspicious looking.



"one of 14 high value detainees"

I've lost the ability to respect this administrations' definition of "value".

[pickel]

I agree with pickle, but not only that but I thought that the CIA employs only Americans.

"I agree with pickle"

WOW That doesn't happen very often...I'm aghast !!!

[Chuckiechan]

EVERYBODY deserves legal representation

If he needs a lawyer, let him have our embassy contact his embassy, and we'll work it out.

Unless they might tortue him because he is a terrorist...

Just who said that the Constitution was meant be used as an instrument of our own destruction?

[no1_vern]

So what is wrong with providing a lawyer with proper security clearance for these people?

My friend, I have to say this: either its THE SAME LAW FOR EVERYONE or we might as well start wearing terrorist clothes, cause we are headed down that road as we speak. After we have the information we need from them They deserve the same treatment/conditions as all prisoners. They deserve a chance to become free at the end of their punishment. To get to that punishment they deserve a trial. They can NOT get a trial if we do NOT ALLOW them to have the same legal status as all prisoners. Whether they are American, Canadian, or Pakistani, they are human, and as such deserve the same rights as ALL HUMANS.

Or do you believe that justice is just a word to be mouthed and not heeded??

[Chuckiechan]

its THE SAME LAW FOR EVERYONE or we might as well start wearing terrorist clothes, cause we are headed down that road as we speak. After we have the information we need from them They deserve the same treatment/conditions as all prisoners. They deserve a chance to become free at the end of their punishment. To get to that punishment they deserve a trial. They can NOT get a trial if we do NOT ALLOW them to have the same legal status as all prisoners. Whether they are American, Canadian, or Pakistani, they are human, and as such deserve the same rights as ALL HUMANS.

Sorry, but I disagree. We don't owe our enemies anything. They came to kill us, and some succeeded. Why aren't their respective countries coming to their aid?

Same law for everyone? How about the recent flogging of a rapist and his victim? Are you cool with that? Or are you saying "same US law for everyone". If you are saying that, then what's wrong with imposing our will on other countries to give them democracy and a US legal system?

[no1_vern]

Sorry, but I disagree. We don't owe our enemies anything. They came to kill us, and some succeeded. Why aren't their respective countries coming to their aid?

Same law for everyone? How about the recent flogging of a rapist and his victim? Are you cool with that? Or are you saying "same US law for everyone". If you are saying that, then what's wrong with imposing our will on other countries to give them democracy and a US legal system?

Should we just kill all of them? Then we wont need to care for them, wasting our taxes on keeping them around.

Yes? Then theres nothing more for us to talk about.I WILL NOT be a part of such an attrocity!


NO? Im so glad you agree with me. When I said the same law for all I meant that we should treat them as we would treat any human being. NOT like a lost dog that wandered onto our lawn. What do you believe would be a just sentence for these people??

The flogging of the victim I disagree with. The punishment of the perpetrators I agree with. We(in the USA) have decided that flogging is too inhuman for us to use in our justice system. In Saudi Arabia, which is a sovereign nation, they still use it, as is their right in their justice system. IOW they are following the Laws of their land. IF we had jurisdiction over THAT trial the results would have been very different.

We DO have jurisdiction over these prisoners. If in no other means than by might. They are OUR Prisoners(aka prisoners of the US), and by definition are the responsibility of our justice system(military or civilian) they DESERVE a chance to legally defend themslves. We are required to take care of them as they are human beings if for no other reason than that we are a moral nation and it is immoral for us to treat them without justice.

NEVER forget that what we do, many nations follow. Being SEEN to BE just is easily as important and most of the times is much more important than just handing judgements out to please the mob.

[Chapper]

I am lost and ashamed of my government in this.
How many innocent people were abducted and incarcerated in Guantanamo and apparently other unknown places? Does ANYONE really know?
Innocent till proved guilty?
A military tribunal? That makes me laugh with honest doubt considering some of the results of military who have been charged with crimes of abuse and torture in this battle.
Why is it hardly ever mentioned that so many acts in this war were declared as war crimes in the Nuremberg Trials...very much at the instigation of the United States?

[Theophylact]

As Adventus comments,

We will torture you and put you in secret prisons, but what we do and where we do it is so secret even you can't talk about it.

The unstated conclusion here, of course, is that the detainees can never be released, either, because the government can only control what they say so long as they control access to the detainees. So if they are not terrorists, we cannot release them because of what we did to them when we suspected they were terrorists. And if they are terrorists, we can't tell anyone because that would involve revealing how we got the information, and that information itself is our nation's most sensitive national security information. So it is not what they did, but what we did to them, that we must keep secret.

Kafka was a prophet, and Joseph Heller his godchild. And George Orwell was wrong. It isn't the dictatorship we should fear, the totalitarian government; it is democracy. It is us.

We are the monsters.

[cyphen]

I am lost and ashamed of my government in this.
How many innocent people were abducted and incarcerated in Guantanamo and apparently other unknown places? Does ANYONE really know?
Innocent till proved guilty?
A military tribunal? That makes me laugh with honest doubt considering some of the results of military who have been charged with crimes of abuse and torture in this battle.
Why is it hardly ever mentioned that so many acts in this war were declared as war crimes in the Nuremberg Trials...very much at the instigation of the United States?

The very fact THAT people who went over the line were prosecuted by the military should show you just how responsible the military IS.

This shows yet AGAIN how the left really really REALLY wants to return to treating terrorism as a crime Gorelick style - which was stated by the 9/11 commission as one of the biggest reasons the attacks on 9/11 were allowed to happen.

Sorry - but in war, you don't give captured enemies lawyers. Particularly captured enemies who subvert the geneva rules of war and intentionally target civilians.

[cyphen]

Another "blame America first" guy, eh Theo??? We're the real problem and not the terrorists, eh?

Good luck winning against the terrorists with that attitude.

[no1_vern]

Cyphen, Can you answer what I asked earleir??