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Secrecy, Interrogation and the Rule of Law

JURIST Guest Columnist James Friedman of the University of Maine School of Law says that the veil of secrecy with which the United States has shrouded the detention and interrogation of terrorism suspects makes the rule of law impossible to determine and thus to maintain. ...


For over three years before his recent transfer to Guantanamo Bay, Majid Khan, a Pakistan-born man who attended high school in the United States before returning to Pakistan in 2002, was held and interrogated at a “black” CIA prison. He was held without legal process. His combatant status was never reviewed as required by the U.S. Supreme Court in Hamdi v. Rumsfeld (2004) nor as outlined in the Detainee Treatment Act of 2005.

The Bush administration has labeled Khan a "high-value" detainee. The administration believes Khan was asked by al Qaeda operations planner Khalid Sheik Mohammed to study poisoning of U.S. reservoirs. The government also believes Mohammed may have considered using Khan in a plot against the president of Pakistan.

How did the Bush administration reach these judgments? What did they learn from Khan during his long internment in CIA custody? How did they learn it? Due to an extraordinary request recently filed by the Bush administration in the United States District Court for the District of Columbia it is possible we may never know the answers to these questions.

The Justice Department has asked U.S. District Court Judge Reggie B. Walton to forbid Khan from telling anyone, including his own lawyer, the
details or techniques of his own interrogation. This remarkable request occurred in the context of a habeas corpus proceeding filed on Khan’s behalf to challenge the legality and constitutionality of his detention.

According to CIA Information Review Officer Marilyn A. Dorn, Khan’s secret detention may have exposed Khan to “alternative interrogation techniques” which are classified as TOP SECRET. Therefore, according to the government’s logic, Khan, while defending himself, must keep these secrets.

Admittedly the government’s legal position against Khan sounds as if it were scripted by Joseph Heller, a revised edition of Catch-22. Nevertheless, the Justice Department’s attempt to keep Khan silent in a hearing where he challenges the legality of his own detention raises fundamental questions. The immediate issue is: "how are terrorists suspects to be interrogated?" Are there any rules? This question has been much debated since the McCain anti-torture amendment of 2005 to the recent arguments over the Military Commissions Act of 2006. The more fundamental question, however, is whether the United States government currently believes in the rule of law.

Sophisticated terrorist organizations such as al Qaeda specifically train their members to resist interrogation. In fact there is evidence to suggest that U.S. military survival and evasion manuals have been used by a number of terrorist groups to teach resistance to interrogation. In short terrorists can be both evil and hard nuts to crack. Yet such observations cannot justify the conclusion that anything goes.

The recently retired President (Chief Justice) of the Supreme Court of Israel, Aharon Barak, has of necessity faced the difficult problems raised by
detention and interrogation of terrorist suspects more frequently than any other major jurist. As he has written, as a citizen of Israel he is aware on a daily basis of the horrific tragedies deliberately inflicted by terrorists. As a judge he has consistently ruled, however, that a democratic state must meet basic democratic and human rights norms in dealing with terrorists.

In perhaps his most famous decision, Public Committee Against Torture in Israel v. The State of Israel and the General Security Service (High Court of Justice, 1994) he rejected the government’s argument that a necessity defense could be used by the Israeli General Security Service (Shin Bet) as a legal authorization for physical coercion of terrorist suspects. He left open the possibility that in a rare, extraordinary situation an interrogator might be able to use a necessity defense if the interrogator was prosecuted for his actions. He made clear, however, that necessity - to prevent greater harm - is a rare criminal defense, not an administrative authorization, and that in any case the Israeli Basic Law: Human Dignity contradicted the notion of coercive interrogations.

In Marab, et al. v The Commander of IDF in the West Bank (High Court of Justice, 2002) Chief Justice Barak held that judicial oversight was integral to any administrative detention as was access to a lawyer. He spoke of judicial access in a matter of days, not years as in the Khan case.

Israel has had a greater percentage of its population killed and wounded by terrorist attacks than has the United States. Israel is hardly seen as soft on terrorism, but it has not abandoned the rule of law. As Justice Barak has said, democratic values may at times require a democratic state to fight terrorism with one hand tied behind its back, but more importantly those same values give democracies the upper hand. Democracies abandon the law at their peril.

A classic exposition of the rule of law was written by the famous English legal historian Albert Venn Dicey at the end of the nineteenth century. He wrote the rule of law consisted of (1) the supremacy of “regular law” as opposed to arbitrary power, (2) equality of all before ordinary courts applying ordinary law of the land, and (3) the rights of individuals as defined and enforced by the courts.

I do not believe these values are violated by military tribunals if they
provide due process and fundamental fairness to those charged with war crimes or crimes against humanity. But to maintain Dicey’s rule of law it is by definition necessary to ascertain how the government treats all, including the most heinous individuals. The veil of secrecy with which the United States has shrouded the detention and interrogation of terrorist suspects makes the rule of law impossible to determine and thus to maintain. Telling the suspect he is forbidden to speak of his own interrogation is the logical outcome, and an almost literary symbol, of government by secrecy.

King Charles I of England, a seventeenth century chief executive, disliked traditional English legal procedure. He also had to deal with a recalcitrant Parliament. The King’s solution was to rule by Royal Proclamation and to enforce such proclamations in the Court of Star Chamber. While authorities have disagreed to what extent Star Chamber proceedings were open, The English legal historian William Holdsworth and others agree that common law procedure was not followed and the accused was examined in private and often tortured.

Parliament abolished Star Chamber in 1641. Charles I was convicted of treason by Parliament’s High Court of Justice and beheaded on January 30th, 1649. We should have faith in the rule of law and avoid such unpleasantness here in the former colonies.

James Friedman is a professor at the University of Maine School of Law

November 13, 2006


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