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Khan Can't Say What We Did To Him:

Majid Khan claims that evidence used by the U.S. government to classify him as an "enemy combatant" was obtained through the use of torture or other illegal interrogation methods. Khan argues that this should make the evidence inadmissible. Yet Khan's specific allegations are not public. His lawyers may not disclose Khan's allegations and his motion to the U.S. Court of Appeals for the D.C. Circuit is heavily redacted. Marty Lederman is on the case, and he has some questions:

Can anyone think of any precedent in history where the government has claimed a lawful right to prevent a U.S. resident from publicly describing what the government has done to them?

I imagine that Khan's lawyers are understandably wary of raising this issue, for fear that their access to their client might be restricted. But the First Amendment right extends to the audience for Khan's speech, as well (see, e.g., Lamont), and that audience First Amendment right is even more substantial now that the allegations are the fulcrum of a motion pending before a federal court. Has any media outlet made a motion to make the allegations public? If not, why not?

Related Posts (on one page):

  1. Khan Can't Say What We Did To Him:
  2. More on Higazy:
  3. Lederman on Higazy:
  4. Classification Pathologies:
Thomas_Holsinger:
Please define "U.S. resident" for purposes of this discussion. I suspect here it is:

(a) a foreign national whose own government has told us to keep him;

(b) who has never been within 2,000 miles of any American state, territory, or possesion before;

(c) coming into American custody abroad, and;

(d) is now held at Gitmo.

I.e., he ain't an American resident.
12.16.2007 6:38pm
Waldensian (mail):

Please define "U.S. resident" for purposes of this discussion. I suspect here it is:
(a) a foreign national whose own government has told us to keep him;
(b) who has never been within 2,000 miles of any American state, territory, or possesion before;

For what it's worth, Lederman states that:

Khan is (or claims to be, anyway) a longtime U.S. resident who has had asylum in this country since 1998.

So if that's true, I guess (b) is out.
12.16.2007 6:44pm
Thomas_Holsinger:
Waldensian,

Persons granted political asylum by the U.S. govt. are lawful U.S. residents. This one might bear watching.
12.16.2007 7:09pm
Vermando (mail) (www):
I assume you've already seen Balkanization's explanation, in today's post on Khan:

"As I've discussed before, as a condition of being able to speak to their client in the first place, the government required the lawyers to agree not to reveal what their client has told them -- not even to members of Congress!"

He then provides a link to an earlier piece he had on this very topic.

Is that true? If it is, we were a bit quick to blame the victim, no?
12.16.2007 7:35pm
PersonFromPorlock:
I still want to see someone held at Gitmo appeal to a Cuban court, but this is mainly because I'm a terrible person. In the meantime, wouldn't it be more honest for the administration to go ahead and invoke the Star Chamber as a precedent?

I say this as someone who is convinced the war against radical Islam is absolutely necessary. But I suspect that the Bush administration is pretty much at sea over how to prosecute it, and reduces itself to bureaucrats playing silly buggers with the Constitution for lack of any better ideas.
12.16.2007 7:45pm
Duffy Pratt (mail):
He can't make the allegations because Khan is on double secret probation.
12.16.2007 7:47pm
Thomas_Holsinger:
Vermando,

Suspicions about media reporting of legal matters is not blaming the victim. I don't trust the media to ever report legal matters more complicated than a jury verdict or court trial criminal conviction/acquittal. They are more clueless than biased. The general dumbing down of everything is most apparent in news reporting by the mainstream media.

While lawyers are in many instances paid flacks, reporters are living examples of Brownian motion.

But the context here is a classic example of use of a common weasel word. The term "U.S. resident" in the context of prisoners held by the U.S. government during the war on terror is commonly used as a euphemism for prisoners fitting the definition in my first post. I was right to be suspicious.
12.16.2007 7:55pm
ProctorOfAdmiralty:
Why not just redefine and then relabel what is meant by "US Resident", just as was done w/ illegal combatants? Sorry, I just couldn't help it . . .
12.16.2007 8:34pm
NI:
If the Lamont case does indeed hold that the First Amendment extends to the audience as well as the speaker (and since I haven't actually read the case I am taking Lederman's word for it that it does), then it seems to me this case has an easy answer: Some member of the public who wants to know what his government is up to should bring a separate civil suit against the government alleging that the restrictions placed on Khan and his lawyers violate the public's First Amendment rights. I can't believe the ACLU hasn't already thought of this.
12.16.2007 9:13pm
Anderson (mail):
Just when you thought it couldn't get any more obscene ....

I suppose someone still thinks secrecy's required so that al-Qaeda won't be able to go, "aha! waterboarding and sleep deprivation -- now that we know, we can train ourselves to resist!" ... and not because the feds want to keep their shameful deeds hushed up.
12.16.2007 9:14pm
ReaderY:
Agree a non-resident has no First Amendment rights.

Given that the right of privacy has nothing to do with marriage, childbearing and family life but extends to decision involving transcendental values and identity, wouldn't publication of something like this be an intrusion on the President's privacy?

Why can't people who are morally offended by these sorts of things simply have a talk with their ministers/ What's the basis for intruding religiously-based morality that arises from treaties among medieval theocracies into activities that modern secular states routinely do?
12.16.2007 10:52pm
John (mail):
Kahn's petition states that he had been a U.S. resident (but not a citizen) and that the U.S. was the "only" home he knew. However, he asserts, he was captured in Pakistan (it doesn't say under what circumstances) and held in CIA overseas prisons until sent to Guantanamo.

So I don't see much to the argument that he should be treated as a resident alien, much less a citizen. Like other current cases, this will turn on what Constitutional rights the Supreme Court gives to aliens in U.S. custody overseas. While the Constitution of course gives them none, at least in haec verba, that has not stopped the Court before and surely will not stop it now. But as there is nothing in the Constitution to guide this, we will have to wait for the whims of our Justices to take hold and guide our arguments. For now, we are counting angels on the head of a pin.
12.16.2007 11:20pm
Oren:
The full version will come out eventually, a court employee will misplace it, a lawyer will accidentally leave it somewhere. I don't really have much faith in the US gov'ts ability to keep embarrassing secrets anymore
12.17.2007 12:00am
Thomas_Holsinger:
Khan lost his claim to the protection of U.S. law when he left the country. The Constitution follows the flag only for American citizens.
12.17.2007 12:00am
Thomas_Holsinger:
Oren,

That's a point. "Don't attribute to conspiracy that which can be explained by stupidity." It will probably be found on some laptop auctioned off by the General Services Administration.
12.17.2007 12:03am
Just Dropping By (mail):
The people discussing Khan's alleged lack of First Amendment rights are blatantly ignoring the elephant in the room: Khan's lawyers are almost certainly American citizens. As such, they would have an independent First Amendment right to tell people what Khan told them. The law cannot possibly be that the US government may prohibit American citizens from publicly revealing what they were told by a foreign citizen, even if the foreign citizen has no First Amendment rights. That would effectively permit the US government to ban all foreign publications, news broadcasts, etc., and then punish any American who attempted to tell other people about their contents.
12.17.2007 9:53am
Orielbean (mail):
Just Dropping By seems to have shut down the thread. Anyone have any counter points to his position of why the lawyers can't speak? Or is it covered under more classified super secret probation law?
12.17.2007 1:19pm
ejo:
JDY-wasn't that what Lynn Stewart cooked up for a defense with her attempts to further the jihadist cause?
12.17.2007 1:33pm
Thomas_Holsinger:
Just Dropping By,

I take it you don't practice law and so have never encountered confidentiality orders, sealed records, etc.

This is not a criminal prosecution.

You might try reading the links in the original post.
12.17.2007 2:10pm