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When the Secret is the Question

Secret Prisons, Top Secret Interrogations

by CHRISTOPHER BRAUCHLI

It’s a tremendous responsibility that has been thrust on those who are imprisoned by George Bush. They have, albeit it unwittingly, become our allies in the war on terror. They remain incarcerated indefinitely thus protecting the rest of us (who have not yet been incarcerated) from the likes of them (even if they are not terrorists) and while incarcerated, pose no threat to those of us who remain free They have now been told that while incarcerated Mr. Bush was willing to entrust to them information that has been designated TOP SECRET. We would not have learned this important piece of information but for Majid Khan.

Mr. Khan is a Pakistani who recently moved from what was a non-existent secret prison run by the C.I.A. in a far-off country to the Guantánamo Detention camp in Cuba. Mr. Khan now has a lawyer. The government doesn’t want Mr. Khan to tell his lawyer, what kinds of interrogation methods were being used on him (and therefore, shared with him) while he was in the secret prison. That is because conditions at Guantánamo are only adequate for handling information classified as secret. Kathleen Blomquist, a Justice Department Spokeswoman explains:

"information regarding the former C.I.A. detainees [like Mr. Khan] was classified as top secret. She said the information he shares with his counsel should "be appropriately tailored to accommodate a higher security level."

Why that should be is something of a mystery. Readers will recall that in the statement accompanying legislation George Bush sent Congress that authorized military tribunals for terror suspects and set rules to protect U.S. military personnel from facing prosecution for war crimes, he said, although not in these words, that the United States uses "alternative" interrogation methods that help the people being questioned remember things they might otherwise forget. Those procedures "were tough, and they were safe and lawful and necessary."

Ms. Blomquist’s comments tell us that although the prisoners thought they were being tortured (Mr. Bush’s assurances to the contrary notwithstanding) they were at the same time being given TOP SECRET INFORMATION. (Anyone wanting to get an idea of the kind of top-secret information Mr. Khan has can Google Mamdouh Habib and find the torture affidavit that was released by the Federal District Court in Washington on January 5, 2005. It describes the top-secret information (such as standing on tiptoes in water up to his chin for hours) that was entrusted to Mr. Habib while in prison. Mr. Khan’s experience may well have been no different from that. An uninformed reader of the affidavit might consider the techniques torture but for the fact that Mr. Bush doesn’t do torture.)

In November the Central Intelligence Agency told a federal district court in Washington D.C. that al Qaeda suspects should not be permitted to describe publicly the "alternative interrogation methods" the CIA used on them while holding them in the secret prisons. The D.I.A. told the court that if Mr. Khan told just any person what the procedures were, it would cause "extremely grave damage to the national security." Marilyn A. Dorn, an official at the National Clandestine Service that is part of the C.I.A. told the court that "If specific alternative techniques were disclosed, it would permit terrorist organizations to adapt their training to counter the tactics that C.I.A. can employ in interrogations."

It seems safe to say that if the prisoners knew when being interrogated that they were being entrusted with "top secret" information they would feel quite differently about the process. They would take pride in having been permitted to participate in this very important process. They would not be any the less proud knowing that the only reason the C.I.A. shares this top secret information with them is that it hopes that in the process of sharing the information those being questioned will feel compelled to furnish additional information to their interrogators.

So long as Mr. Khan remains in prison the government can count on him to keep the secret he and the C.I.A. enjoy sharing. The obvious question is if Mr. Khan gets out of prison can the government count on him to keep his secret? Thanks to Mr. Bush’s foresight in having Congress give him broad new powers, if it looks like Mr. Khan might get out of prison either before or after a trial, Mr. Bush can designate him an enemy combatant and keep him in prison forever. That may seem harsh, but if it is the only way the secret can be kept, then it is in everyone’s best interest that Mr. Khan remain in jail the rest of his life. That way the secret will be preserved and we will all be safer-even Mr. Khan. He, however, will have to enjoy his safety in a jail cell.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu. Visit his website: http://hraos.com/