Top-Secret Torture

Tuesday, November 21, 2006

BURIED WITHIN a recent government brief in the case of Guantanamo Bay inmate Majid Khan is one of the more disturbing arguments the Bush administration has advanced in the legal struggles surrounding the war on terrorism. Mr. Khan was one of the al-Qaeda suspects who was detained in a secret prison of the CIA and subjected to "alternative" interrogation tactics -- the administration's chilling phrase for methods most people regard as torture. Now the government is arguing that by subjecting detainees to such treatment, the CIA gives them "top secret" classified information -- and the government can then take extraordinary measures to keep them quiet about it. If this argument carries the day, it will make virtually impossible any accountability for the administration's treatment of top al-Qaeda detainees. And it will also ensure that key parts of any military trials get litigated in secrecy.

Mr. Khan is one of 14 people transferred to Guantanamo earlier this year from the CIA's secret prison program. After his transfer, lawyers seeking to represent him asked for an order granting them access on the same terms as lawyers representing other detainees. The government objected on two main grounds. It contended that the court lacks jurisdiction because of two new laws that strip federal courts of authority over detainee matters. That may well be correct, and Judge Reggie B. Walton agreed last week that any consideration of counsel access should wait until the court of appeals rules on the jurisdictional question.

But the government also argues that Mr. Khan is different from previous Guantanamo inmates; their lawyers are cleared to see information classified at the "secret" level. The CIA program, however, involves top-secret information, so lawyers for Mr. Khan would have to be cleared at a higher level -- and access would have to take place under more restrictive circumstances.

The trouble is that at least some of the secrets the government is trying to protect are the very techniques used against people such as Mr. Khan -- and its means of protecting them is to muzzle him about what the CIA did to him. CIA official Marilyn A. Dorn said in an affidavit that Mr. Khan might reveal "the conditions of detention and specific alternative interrogation procedures." In other words, grossly mistreating a detainee now justifies keeping him quiet.

The problem with this argument is not just its Kafkaesque sheen. If the courts accept it, it would have vast practical implications. The integrity of any military trials of the high-value detainees will depend on their excluding evidence obtained by unduly coercive means. By the logic of the government's argument, however, all of that litigation will have to take place in secret. Detainees are also supposed to be able to appeal their status as enemy combatants to the federal appeals court here in Washington. The government's logic would all but assure that the bulk of any such appeal would be secret as well. So accepting this theory would mean that no claim of torture could be resolved in a transparent and accountable fashion. Given the importance of open trials for the high-value detainees, it's hard to imagine a principle that would more thwart the effort to bring them credibly to justice.

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