One of the most stunning revelations in Jane Mayer's current, remarkable New Yorker article about CIA black sites is that an explicit part of the rationale for refusing to provide detainees with attorneys is the fear that the detainees will provide those attorneys with the details of the torture they'd suffered:
The utter isolation of these detainees has been described as essential to America’s national security. The Justice Department argued this point explicitly last November, in the case of a Baltimore-area resident named Majid Khan, who was held for more than three years by the C.I.A. Khan, the government said, had to be prohibited from access to a lawyer specifically because he might describe the “alternative interrogation methods” that the agency had used when questioning him.
One has to imagine that this figured into the Bush administration's efforts in mid-2006--after the black sites had supposedly been shut down and their prisoners shipped over to Guantanamo--to more broadly suspend the writ of habeas corpus. It's as ingenious as it is sinister. Think about it--call someone a terrorist, torture him into admitting that they're a terrorist, then deny him access to an attorney to hide the fact that he was tortured and send him away forever. If the policy is ever questioned, suggest a non-existent threat to national security.
Recently I reported on a congressional hearing during which a former Bush administration attorney--a man named Bradford Berenson--made the argument that closing Guantanamo is inherently difficult because a lot of countries refuse to repatriate these detainees. Even if they've been exonerated. Here's the key exchange between Berenson and Rep. Jerry Nadler (D-NY):
When detainees are exonerated, for instance, there’s often a problem: no country will repatriate them. Many fear that, in such circumstances, innocent prisoners will remain incarcerated indefinitely. When Nadler pressed Berenson on this, it evoked one of the hearing’s weightiest repartees.
“The notion of bringing them into the United States strikes me as extremely dangerous,” Berenson cautioned. “We’re not always right.”
“Do we have a right under our laws to keep them in jail forever?” Nadler asked.
“If the only alternative is to release them into the population of the United States and give them immigration status,” Berenson asked rhetorically. “It’s a series of bad choices.”
“That we created,” Nadler noted.
Charming. So the implicit logic is that if a detainee's country of origin will in fact repatriate him, then releasing him should be no problem. Right? Well apparently not.
The decision this week by the British government to request the return of five Guantánamo detainees with British ties was welcome news for Bush administration officials eager to cut the detention center’s population.
But officials quickly suggested that several of the men might be too dangerous to be set free, indicating that sensitive negotiations over how Britain will treat them are probably needed before they can leave Cuba. The episode illustrates why the administration has had such a difficult time reducing the detention center’s population.
The effort has been hampered by a laundry list of diplomatic, legal and political challenges, including the unwillingness of some countries to accept detainees and concerns about human rights abuses in others, officials and critics of the administration say.
Read the whole story. Though it portrays the administration's efforts in a somewhat different light than I would, keep this bit in mind, "Brent Mickum IV, the American lawyer for one of the detainees with British ties, said the administration was continuing to portray many of the detainees as extremely dangerous, while insisting that other countries have a duty to accept them." Just as with the five detainees described above. Not what I'd call a great way of hastening the end of Guantanamo. The relevant question to my mind is whether the administration is hampering the process so that some of these guys don't someday describe the torture techniques used against them to a lawyer or a judge or the media. If that's the case, then you can be sure the administration will do anything in its power to keep these guys in military custody for as long as possible. Which is one of the more perverse ways I can imagine of obstructing inquiries into serious crimes committed at the highest levels of our government.