Why should Obama, who has carefully studied the Constitution, be backtracking this way?
First, he does not dare appear to be “soft on terror.” Second, perhaps he needs to be able to try the Guantanamo detainees in a rigged setting, or even keep them from trial forever: Lawyers claim that torture, including sexual torture, was so endemic in the CIA and the military that Obama could be holding scores, if not hundreds, of prisoners whose bodies are crime scenes.
Wells Dixon, a lawyer at the Center for Constitutional Rights who represents some of the detainees, said the Obama administration cannot risk calling the torture practices crimes, so it calls them “classified sources and methods” that cannot be revealed in court.
“I can’t even tell you about the way my clients were tortured or I will be prosecuted,” he says.
In fact, even the explanation of why this material is classified cannot be reproduced, because the explanation itself is privileged.
Nor has the access of lawyers to their Guantanamo clients improved under Obama. “We are subject in all detainee cases to a protective order,” Dixon says.
“Under this order, everything the detainee says is classified,” unless the Department of Defense “Privilege Team” decides otherwise, he says.
Dixon then told me a revealing story of one of his clients, Majid Khan, a so-called “high-value detainee” who was held for three years in CIA “black sites.” Khan was tortured, Dixon said, though “the government would say that what happened to him is an ‘intelligence source or method.’”
Because Dixon has a security clearance, he cannot discuss those classified “sources and methods.”
On the other hand, Dixon continued: “When the government does something to [Khan] that they say is classified, they have disclosed to him classified information. But since he doesn’t have a security clearance, there is nothing that prevents him, unlike me, from saying to the outside world: ‘This is what they did to me.’ Nothing prevents that — except for the fact that he is physically in custody.”’
The “logical conclusion,” Dixon says, is that Khan “must be detained for the rest of his life — regardless of whether he is ever charged with a crime — because if he was ever released, nothing would prevent him from disclosing this information.
Majid Khan — and there are many more like him — is a classic product of the Bush administration’s disregard for the fundamental principles of the rule of law. Unfortunately, Obama’s administration, for all its lofty rhetoric, appears too willing to perpetuate it.
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