I’ve been thinking a lot about secrecy lately, in part because Penn Law just hosted a fabulous conference this weekend on Secrecy and the Rule of Law. One of the biggest problems the government is facing is the issue of who gets to make classification decisions, how they are made, and whether these decisions are impartial and equitable.
Two recent secrecy decisions prompt this concern – both dealing with Bush-era use of torture or enhance interrogation techniques during the conflict with al-Qaeda.
Former CIA official Jose Rodriguez just published a strongly worded memoir that argues, without much qualification, that the torture of al-Qaeda suspects was necessary to protect the nation. More specifically, Rodriguez discusses the torture of specific suspects and concludes that the killing of bin Laden, and other recent counter-terrorism successes, would not have occurred but for the torture of these suspects during the Bush Administration. It is unclear how Rodriguez has the information to make this judgment with confidence, since his security clearance was presumably revoked after he left the CIA and he therefore has no direct access to the underlying information that led to – or did not lead to – the finding of Bin Laden, which happened after Rodriguez left the CIA. In other words, how does he know?
At the same time, the detainees on trial before the 9/11 military commission operate under a strict rule of secrecy regarding torture, since their torture falls under the rubric of “intelligence methods and practices” that must remain secret. So far so good. But the manner in which this rule is being applied is incredibly strict, insofar as it extends to the detainees’ own recollection of the treatment that they were subject to during their custodial interrogations. In other words, if the detainee speaks to his lawyer about how he was tortured, and the lawyer takes notes, those notes are then classified secret, because they relate to the government’s methods and practices. The fact that it was the detainee himself who generated the document doesn’t matter.
The government’s argument, so far as I can tell, is that the relevant issue is whether the document is within the government’s custody or control, not who generated the document. Since the detainee is in custody, these notes, even if they simply represent the detainee’s personal recollections, are within the custody or control of the government. And they contain classified information about interrogation methods. So they must remain secret and cannot be disclosed to the outside world, even if the detainees themselves may wish to publicly speak about the abusive treatment they were subjected to by government agents.
I am not questioning the propriety of this argument, though plenty of others have on First Amendment grounds (doesn’t everyone have the fundamental right to speak to the world about how the government is treating them?). Rather, my point is far more narrow. Are government officials making these classification decisions in a consistent and coherent manner? Something seems amiss when the detainees can’t speak about the torture but former CIA officials can. Now, I’m not claiming here that the result is unfair. Rather, I’m simply claiming that these results strike me as inconsistent and incoherent, and ought to give us pause that the overall process of secrecy classifications is consistently administered. Some critics might claim that the inconsistency generates unfairness, but even if you don’t care about fairness on behalf of the detainees, one ought to be worried here that the inconsistency is symptomatic of the system’s ineffectiveness – and that ought to worry everyone.