CIA Detainees: First the Crime, then the Cover-up

By JOANNE MARINER

Wednesday, Jan. 31, 2007

In a televised speech last September, in which he officially acknowledged the CIA's secret detention and interrogation program, President Bush practiced the sorry art of euphemism.

Detainees in CIA custody were not tortured, he claimed, they were subject to "an alternative set of procedures." CIA interrogators were not trained to coerce information out of detainees; they learned how to conduct "sensitive questioning." And Bush himself did not threaten to veto the Detainee Treatment Act of 2005, which barred the abuse of detainees; he and other executive branch officials simply "worked with" the bill's sponsors to obtain the passage of a revised version of the legislation.

Words are one thing, but the actual facts of the secret CIA prison program that Bush finally acknowledged -- though did not describe -- are more important. And so it should come as no surprise that the Administration has since been taking aggressive steps to conceal the gap between the President's words and the facts as they occurred.

The Administration's attempt to cover up abuses committed against CIA detainees is based on its classification power: its power to deem certain information to be secret. In the Military Commissions Act (MCA), passed the same month as the President's speech, in briefs filed in federal court, and, most recently, in the MCA's Rules of Evidence and Procedure, the Administration has set up protections for the CIA's "methods and activities" that threaten to block the disclosure of illegal CIA abuses.

"Enhanced Interrogation Techniques," Including Waterboarding

In his September 2006 speech on the CIA's secret prison program, President Bush announced that he was transferring the last fourteen CIA detainees to military custody on Guantanamo. His reasons for ordering the transfers were clear: the CIA program was under pressure from the Supreme Court's opinion in Hamdan v. Rumsfeld, and Bush thought that the prospect of prosecuting the detainees in military commissions would create additional impetus for the passage of the MCA.

Yet the transfer of these detainees raised another issue that, for the Administration, was more worrisome: the possible disclosure of abuses.

There is good reason to believe that this group of detainees was subject to more serious abuses than just about anyone else who was held in CIA custody. According to ABC News, at least nine of the fourteen detainees were subject to the CIA harshest techniques, the so-called "enhanced interrogation techniques" that only limited number of CIA officers were authorized to use. At least five of the detainees were reportedly subject to waterboarding, the most severe of the enhanced techniques, by which a prisoner is strapped to a board and made to feel like he's drowning.

In short, these detainees likely have much to tell about their treatment. They may also have information that could help investigators figure out where they were held. Notably, ABC News has reported that nine of the fourteen were held for a time in CIA custody in Poland. The question of whether Poland hosted secret CIA prisons remains a subject of considerable controversy, with the Polish authorities continuing to deny the claim.

Protections on Classified "Sources, Methods or Activities"

Obviously the Administration was quite aware of the possibility that once it "un-disappeared" this group of detainees, they would start to reveal the details of their treatment. With this concern in mind, the MCA contains several provisions that allow the government to protect from disclosure the "sources, methods or activities by which the United States acquired evidence," if those practices are classified.

And of course the government has already insisted on a number of occasions that all of its "alternative" interrogation methods are classified. It has claimed, in fact, that revealing these methods publicly would cause extremely grave harm to U.S. national security.

Indeed, in the case of Majid Khan, the first of the fourteen detainees to have legal representation, the government has gone even further: It has tried to obstruct legal access to Khan on the grounds that he might reveal to his attorneys the abuses that were committed against him.

Using what can only be termed Kafkaesque reasoning, the government argued in a brief to the federal court hearing the case that Majid Khan "came into possession of" top secret, classified information - including information about "alternative interrogation techniques." While Khan no doubt did learn about these techniques, he learned about them the hard way: they were used on him.

Although Khan's lawyer rightly argued that the government was misusing its classification authority "to conceal illegal or embarrassing executive conduct," the court ruled in the government's favor.

The latest sally in the Administration's effort to keep these abuses secret came in the form of the recently-issued Military Commission Rules of Evidence and Procedure. The new rules have a number of extensive provisions meant to protect classified information, and in particular the "sources, methods and activities" by which the government obtained information.

Where the rules go a step beyond the MCA is in allowing determinations regarding the reliability and admissibility of such information to be determined on an ex parte basis, excluding both defense counsel and the accused. Not only will these rules facilitate the government's effort to keep its torture techniques secret, they are also likely to obstruct the defendants' ability to challenge the admission of evidence obtained under torture, a basic fair trial right codified in the MCA.

Classifying Information to "Prevent Embarrassment"

In 1972, President Richard M. Nixon issued an executive order that barred federal officials from using their classification powers to classify materials in order to "prevent embarrassment to a person or Department."

It is telling - and typical -- that this Administration ignores rules that even Nixon created.


Joanne Mariner is a human rights attorney. Her previous columns on CIA detainees, Guantanamo, and other are available in FindLaw's archive.

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