Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
If you feel you must give the Bush administration credit for its latest legal pivot in the war on terror, give it credit for having the cojones to actually tell a federal trial judge that the "interrogation methods" (what some reasonable people call "torture") it has used on terrorism suspects is so vital to "national security" that the recipients of it may not tell their own attorneys what's been done to them.
In a late October filing in a case involving Majid Khan, one of the 14 "high-profile" terrorism suspects transferred recently from secret U.S. prisons to Guantanamo Bay, Cuba, the feds asked U.S. District Judge Reggie B. Walton, in Washington to forbid Khan from sharing with his attorneys the details of the treatment he has received at the hands of his American captors and their allies.
Those attorneys had asked the court for some sort of access to Khan, and at least some of his colleagues, so they could begin to work with them on offering a legal defense.
The Justice Department told Judge Walton that "extremely grave damage" could be caused to national interests if the men are allowed to disclose to their own attorneys what happened to them after they were apprehended. Those interrogation methods are "secrets," the government said, so they may not be shared with our enemies through their public dissemination in civilian cases brought on behalf of the men. Remember, too, that the White House and Congress this fall passed a law that seeks to block the courts from even considering those civilian cases.
Not yet comprehending the gall of this argument? Think of how you would feel if your local district attorney asked your local judge to block you from telling your lawyer that you were beaten by the cops when they arrested you. Think about how that might shape your ability to present a legal or factual defense. Think about how that might otherwise shape your ability to communicate with your lawyer. And think about how you'd perceive that judge if he were to grant that DA's request.
The federal courts may have bought this line in 2002, when the judicial branch was scared witless and into submission by executive branch bluster. But it's going to be a very tough sell in 2006, now that the judiciary has finally begun to find its spine and check the executive branch's worst excesses in the name of fighting the war on terrorism.
The feds in court anyway have played the "national security" card so often, and in so many similarly inapt situations, that judges are beginning to tune it out. This is likely to be one of those times.
On the Surreal-Meter, the White House's "keep it quiet" argument reminds me of the case of Mustafa Ait Idr, one of the terror detainees at Gitmo. Years ago, Idr was brought before the Combatant Status Review Tribunal, the first-step procedure our government created to begin to vet the detainees to determine who had done what to whom and why. Idr was accused of associating with a "known al Qaeda operative" so he reasonably enough asked the judge to tell him who the operative was.
"Give me his name," Idr told the court, and then I can tell you if I know him or not. The judge told him: "I do not know."
Then, the record shows, Idr said this: "I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation."
And then, the record also shows, the CSRT presiding officer responded: "We are asking you the question and we need you to respond to what is on the unclassified summary."
In the Idr case, military officials were asking a terrorism suspect to tell them if he knew a man whose name they would not give him. It's a riff on the old military-drill question that tormented many a poor grunt. "How long is a piece of string, private?" the drill sergeant would ask before ordering his stammering victim to do pushups (or whatever other punishment) for not knowing the answer to an impossible question. Of course, it was counted against Idr, too, when he refused to answer his impossible question.
In the case of Majid Kahn, government officials are telling the court that a terrorism suspect may not talk to his own attorney about key elements of his own defense — elements that have nothing to do with the crime charged but which are instead based upon the suspect's own personal experiences at the hands of his captors after his capture.
And that's a riff on the administration's shopworn — and ultimately self-defeating — penchant for tormenting these detainees, both literally and figuratively, while trying to cloak its own legally questionable (and routinely questioned) conduct.
Does anyone out there think it is still a secret that the U.S. government has interrogated terrorism suspects in an aggressive manner?
Do our leaders truly believe that al Qaeda doesn't already know about "water boarding" — which our Vice President recently re-endorsed just around the time that his Justice Department was making this argument before Judge Walton?
Everyone understands why the feds don't want future suspects to know in advance what interrogation techniques will be used on them. But if those same feds aren't already coming up with new, improved and more productive interrogation techniques, they aren't doing their jobs.
The truth is that whether or not the feds prevail with their argument before Judge Walton or the federal appeals courts, they will pepper Kahn with the same kangaroo-court questions with which they peppered Idr.
The government sure gets you coming and going if you are a terrorism suspect — no matter whether there is evidence that you are guilty of anything sinister or not.