Classification Pathologies:

Majid Khan is a CIA detainee. In meetings with his attorneys, Khan has apparently made allegations concerning his treatment during his detention. Yet such information, even as detailed by Khan himself, is presumptively classified, and his attorneys are apparently barred from relating Khan's claims to Congress. Marty Lederman finds this "absurd," and I am inclined to agree. As Lederman asks, "Even if the classification [of the techniques] were itself valid, can it really be the case that the persons against whom the CIA employed its methods may be prevented from disclosing such historical facts to the public?"

I can see an argument for barring Khan's attorneys from disclosing information that might reveal classified operational details (e.g. how Khan was identified and captured) or sensitive intelligence information (e.g. what Khan told the CIA or learned the CIA knows). The disclosure of such information might compromise national security. Yet at issue here is nothing more than information about how Khan has been treated by the U.S. government — information Khan would almost certainly be able to reveal were he not currently detained and which might help inform the public debate about how detainees are and should be treated. (I recognize that Khan could lie about his treatment, but this risk would hardly seem to justify the prohibition at issue; if he were to lie, the government could dispute his claims.)

The Khan case has disturbing similarities with the Higazy affair. As regular readings of Howard Bashman's How Appealing know, Abdallah Higazy is an Egyptian national who was detained by the FBI and who, in the course of interrogation, made a false confession. (Apparently the FBI's interrogation techniques "worked.") Among other things, Higazy claims that the FBI threatened to identify Higazy's family to Egyptian authorities. Fearing his family could be tortured, Higazy alleges this threat induced him to confess. After his release, Higazy sued and, in an opinion last month, the U.S. Court of Appeals for the Second Circuit held that his suit could proceed.

Interestingly enough, the official public version of the Second Circuit's opinion is redacted. Although there is no dispute that Higazy was innocent of any wrongdoing — he's an engineering student, not a terrorist — some of the information concerning Higazy's FBI interrogation was filed under seal. Some of this information was included in the original version of the Second Circuit's opinion, which (as Bashman recounts here) was initially posted on the Second Circuit's website (and later posted on How Appealing). The opinion was later withdrawn in favor of the redacted version, and a court official asked Bashman to remove the opinion from his site, a request Bashman refused.

As in the Khan case, the "secret" material concerns the U.S. government's alleged (mis)treatment of a detainee, not the sort of information for which classification could be justified on national security grounds. (See Patterico's analysis here.) The disclosure of such information could be embarrassing to the U.S. government, to be sure, but that would hardly justify keeping such material classified or barring public disclosure. To the contrary, public policy often explicitly encourages the disclosure of such information by protecting (and sometimes even rewarding) whistleblowers and others who disclose potential government wrongdoing.

I recognize that there is much information that, at least for the time being, needs to be kept secret for national security purposes. There may even be an argument for concealing some details about highly sensitive interrogations (though I am skeptical). Yet I see no reason why the specific allegations about how Khan and Higazy were treated should be kept from the public. There are many reasons to classify information and enforce government secrecy, but fear of embarrassing the government with allegations of misconduct is not one of them.

UPDATE: Several commenters argue that there is a valid basis for keeping the details of interrogation methods secret. I agree with this, though I also believe that there are countervailing interests against which such concerns need to be balanced. There are reasons why we would not want our most feared enemies to know all of our interrogation protocols. At the same time, political accountability requires some amount of disclosure (particularly to Congress).

Note, however, that this is not what is at issue in either the Khan or Higazy incident. In these cases, what is at issue is the disclosure of what actually occurred during interrogation. Set aside the allegations of illegal conduct by the interrogators (though this is clearly relevant), in neither case would disclosure give terrorist operatives a detailed understanding of our interrogation protocols. It is simply implausible that the Khan interrogations, for instance, exhausted the universe of potential authorized approaches, and future detainees would have no assurance that they should only expect (and prepare for) what was done to Khan. For this reason, I do not think that the argument for classifying interrogation techniques establishes the need to keep Khan's (or Higazy's) claims secret.

Lederman on Higazy:

Marty Lederman on Higazy:

What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development -- the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?

Lord knows Marty and I have our disagreements on various issues, but I think this is a case in which we are on precisely the same page.

More on Higazy:

I agree with Orin that there is much to comment in Rob Loblaw's post, but I disagree with the bottom line. If Higazy sought to have his allegations kept secret, I would agree that keeping such information under seal would not be particularly sinister or problematic. Yet that does not appear to be what happened in this case. To the contrary, as noted here, Higazy's lawyer opposed keeping the allegations under seal.

As I noted in my prior post on the matter, I agree that there are legitimate reasons for the government to file information under seal, and there are even legitimate reasons for the government to keep its interrogation protocols under wraps. In this case, however, what is at issue is not the government's standard interrogation methods or guidelines, but specific allegations of government misconduct in a specific interrogation. Such allegations, and the public's interest in allegations of government malfeasance, would seem to outweigh the government's interest in keeping its interrogation methods secret, particularly since such secrecy could be a means of preventing the disclosure of government malfeasance.

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: