Since so much was happening this weekend politically, it was easy to miss one story by The Washington Post on Saturday, which covered the Justice Department's declaration that one of our detainees at Guantánamo is a human “state secret.” Meaning the very act of being a detainee had given the man “Top Secret” information which he’s not supposed to share—like with a lawyer. What do you know about our torture techniques and where our black sites are? Sorry, you weren’t supposed to know that, therefore no lawyer for you.
That’s right folks, Majid Khan, one of the detainees from the CIA “black sites” is not allowed to talk about his detention and (likely) torture because the lawyer he could speak to doesn’t have clearance to know about U.S. detention policies and “interrogation” procedures.
That a government lawyer could even offer this kind of Kafkaesque argument means someone truly has drunk the Kool-Aid down at the Justice Department.
Marty Lederman at Balkinization drops the sarcasm on this nicely in his post titled: You Call It "Torture"; We Call It "Coming Into Possession of Classified Information":
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.)
Considering how weak the Justice Department's legal argument is there’s little doubt it won’t stand up in court. (At least one would hope). But that’s probably not their goal in the long term. I suspect Justice knows they are going to lose but by filing this ridiculous brief they can delay the legal gears from turning and—likely more importantly—keep the airwaves freed of horrible detainee abuse stories which might reach the ears of federal judges. It's a simple roadblock theory: The longer Khan is kept from a lawyer the longer it will take for him to be freed. (The Center for Constitutional Rights, who filed on Khan’s behalf, has also filed a habeas petition, but expects the access to council issue to be settled first. You can read about his case here.)
--Rachel Joy Larris
| Monday, November 6, 2006 2:46 PM