The CIA and the Justice Department have told a federal court that permitting defense attorneys access to high-level al-Qaida suspects without tighter secrecy procedures could damage national security by revealing harsh "alternative" interrogation methods used in secret CIA prisons overseas.
But defense attorneys say that the government's insistence on secrecy is in fact an illegitimate attempt to "conceal illegal conduct," including the torture of the 14 accused al-Qaida suspects who were moved from CIA custody to the military's detention camp at Guantanamo Bay, Cuba, in September.
The legal battle is taking shape in the case of a legal petition filed in U.S. District Court in Washington on behalf of Majid Khan, a 26-year-old Pakistani man who spent five years living in the United States and graduated from Owings Mills High School in Baltimore County in 1999.
Intelligence officials have accused Khan of working with Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, to research how to blow up gas stations and poison reservoirs in the United States. Khan's lawyers and family deny the accusations and assert that if he confessed to such crimes he did so falsely under harsh interrogation tactics that amounted to torture.
The contest over whether lawyers for the Center for Constitutional Rights, a New York-based advocacy group that represents many Guantanamo prisoners, should be able to meet with Khan underscores the complications of the Bush administration's decision two months ago to acknowledge the detention of Khan, Mohammed and 12 other terrorism suspects held in secret for years.
Khan's petition might also test a provision of the Military Commissions Act, signed by President Bush last month, which bans people accused as "enemy combatants" from challenging their imprisonment using habeas corpus petitions filed in U.S. courts.
Kathleen Blomquist, a Justice Department spokeswoman, said procedures in effect at Guantanamo are adequate only for handling information classified as secret, while information regarding the former CIA detainees is classified as top secret.
"Nobody is trying to keep Khan from speaking with his attorney," Blomquist said. "Rather, the government is asking that the protective order governing the information the detainee shares with his counsel be appropriately tailored to accommodate a higher security level."
But officials acknowledge that devising new procedures with tighter secrecy is likely to take months. Khan's attorney, Gitanjali S. Gutierrez of the Center for Constitutional Rights, said in court papers filed Friday that existing rules are adequate to handle top-secret information and that the government's real motive is to cover up its "embarrassing and illegal" treatment of detainees like Khan.
"The government should not be allowed to torture someone and use that as a justification to keep that information from the American public," Gutierrez said in a telephone interview yesterday.
Gutierrez said she has no direct evidence of the interrogation procedures used on Khan, but some terrorism suspects have been subjected to prolonged sleep deprivation, exposure to cold and waterboarding, a technique that simulates drowning.
The Justice Department and CIA raised their objections in documents filed Oct. 26 with Judge Reggie B. Walton, arguing first that the District Court has no jurisdiction over Khan's case. The department also said that allowing him to talk with an attorney under existing procedures might cause "extremely grave damage to the national security."
"Many terrorist operatives are specifically trained in counter-interrogation techniques," says a declaration by Marilyn A. Dorn, an official of the National Clandestine Service, part of the CIA. "If specific alternative techniques were disclosed, it would permit terrorist organizations to adapt their training to counter the tactics that CIA can employ."
The court filings, first reported by The Washington Post yesterday, also argued that revealing the countries where the prisoners were held by the CIA could undermine intelligence relationships with those governments.