Right to Speak About Detainee Treatment?:
The Washington Post reports on an argument made in court recently by the Justice Department in detainee treatment cases:
As best I can tell, the context of the argument is that counsel for the petitioners, who are now at Gitmo but previously were detained in CIA secret prisons, proposed a regime for access to their clients that is modeled off of the regimes used in other Guantanamo cases. In this brief, DOJ argues that the court should not allow counsel to see the petitioners for two reasons. First, the court has no jurisdiction over these cases under the jurisdiction-stripping provisions of both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and, in any event, the court should resolve those jurisdictional issues first. Second, even if the court has jurisdiction, the procedures proposed by counsel are inadequate because the petitioners have top secret information about the CIA secret prisons. There needs to be special procedures put in place to make sure those secrets aren't leaked.
I don't have much reaction to the first argument, but the government's brief on the second argument is notable for the paucity of citation to pertinent legal authority. The DOJ brief has the usual citations to general claims of the importance of the Executive Branch, but it seems to cite nothing with any direct relevance to the actual legal arguments the brief is attempting to make. Even more strangely, footnote 21 states that if the court wants to enter a protective order and allow access, it "should permit respondents a reasonable time to propose such a regime, confer with petitioners' counsel regarding it, and present a proposal to the Court." I suppose this is better than simply arguing the jurisdictional point exclusively, but the reader can't help but wonder what kind of regime DOJ has in mind. If the facts of what happened to the petitioners are top secret, how does DOJ expect the attorneys to put on a defense?
The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk.Marty Lederman has posted the brief here, and the affidavit here.
The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release — even to the detainees' own attorneys — "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26. . . .
The government, in trying to block lawyers' access to the 14 detainees, effectively asserts that the detainees' experiences are a secret that should never be shared with the public.
Because Khan "was detained by 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," an affidavit from CIA Information Review Officer Marilyn A. Dorn states, using the acronym for "sensitive compartmented information."
As best I can tell, the context of the argument is that counsel for the petitioners, who are now at Gitmo but previously were detained in CIA secret prisons, proposed a regime for access to their clients that is modeled off of the regimes used in other Guantanamo cases. In this brief, DOJ argues that the court should not allow counsel to see the petitioners for two reasons. First, the court has no jurisdiction over these cases under the jurisdiction-stripping provisions of both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and, in any event, the court should resolve those jurisdictional issues first. Second, even if the court has jurisdiction, the procedures proposed by counsel are inadequate because the petitioners have top secret information about the CIA secret prisons. There needs to be special procedures put in place to make sure those secrets aren't leaked.
I don't have much reaction to the first argument, but the government's brief on the second argument is notable for the paucity of citation to pertinent legal authority. The DOJ brief has the usual citations to general claims of the importance of the Executive Branch, but it seems to cite nothing with any direct relevance to the actual legal arguments the brief is attempting to make. Even more strangely, footnote 21 states that if the court wants to enter a protective order and allow access, it "should permit respondents a reasonable time to propose such a regime, confer with petitioners' counsel regarding it, and present a proposal to the Court." I suppose this is better than simply arguing the jurisdictional point exclusively, but the reader can't help but wonder what kind of regime DOJ has in mind. If the facts of what happened to the petitioners are top secret, how does DOJ expect the attorneys to put on a defense?