A Double Standard on State Secrets?

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If you don't know what to make of the Khalid Sheikh Mohammed confession — and I certainly don't — blame the Bush Administration's duplicitous and inconsistent approach to handling state secrets.

I mean, here's a guy with a long record of clear-cut evil, and all the transcript of his confession does is raise questions. Were his claims of responsibility for dozens of attacks mere boasts or the fruits of abuse or torture over years of detention? Why did the Pentagon claim the initial transcript was complete, only to add a section later about the killing of Daniel Pearl? Why was Sheikh Mohammed denied witnesses on the baffling basis that their testimony would be irrelevant? And why did three of the four tribunal members say absolutely nothing during the hearing on whether he qualifies as an enemy combatant?

We don't know the answers, because the facts behind the confession are secret. Which would be fine, if we could trust the Administration to keep secret only that which should be secret. Then we could take the confession at face value. But we can't, or at least shouldn't, and two recent cases show us why.

The first involves the unfortunate abduction of German citizen Kahlid El-Masri. In December 2003, while traveling in Macedonia, El-Masri was detained by Macedonian police and turned over to the CIA, apparently as a suspected terrorist. He was then spirited away to Kabul, Afghanistan, for five months of what he describes as beatings, drugging and other mistreatment. At some point, his captors apparently discovered that they had the wrong guy, and so in May 2004 they dumped him in the wilds of Albania.

In early 2006, El-Masri sued the CIA and various private contractors that, he claimed, had mistakenly subjected him to "extraordinary rendition," the CIA program of moving suspects to countries that allowed interrogation techniques prohibited in the U.S. In March 2006, government lawyers moved to dismiss his case, because it would require disclosure of state secrets about extraordinary rendition. El-Masri objected, arguing that the rendition program had been so widely covered that much of it was no longer secret. And whatever was still secret could remain so by allowing only the judge to review it. But the federal judge in Virginia dismissed the lawsuit, and an appeals court affirmed the decision earlier this month.

The upshot: When called to account for its actions in court, the government effectively shuts down litigation involving embarrassing information that may also include state secrets.

Here's the second case. In August 2005, the Justice Department charged two former lobbyists for the American Israel Public Affairs Committee, or AIPAC, with conspiring to pass secrets to reporters and an Israeli official. The government discovered, though, that the prosecution would require the use of — you guessed it — state secrets. Instead of shutting down the case, Justice Department lawyers asked a federal judge in Virginia last week to approve an elaborate scheme for keeping the information confidential. It involved playing recordings of confidential wiretaps through headphones so only the judge, the defendants' lawyers and the jurors could listen. The public would be shut out, a result that the two lobbyists, who have pleaded not guilty, say would hurt their defense. Aside from raising issues like whether jurors would be sworn to secrecy for life, the procedure is apparently unprecedented, and the judge has ordered a hearing on it this week.

The upshot: When calling people to account for their actions in court, the government finds ways to pursue litigation involving state secrets.

Granted, the El-Masri case was a civil lawsuit, while the AIPAC case is a criminal prosecution. As Aziz Huq of the Brennan Center for Justice at NYU law school says, "There's a difference between denying someone a remedy based on secrecy and subjecting someone to criminal sanction based on secret evidence." The latter is more serious. But the public's right to know what goes on in court is still the same. You would think that, at least for the sake of consistency, the Bush Administration would find a way for El-Masri's case to go forward with secret evidence or, alternatively, drop the AIPAC prosecution or decline to use secret evidence in it.

But that is apparently not how the Administration works. Instead, it exploits claims of secrecy for its own legal advantage, depending upon whether it is the prosecutor or the prey. There is probably good reason to keep much of the case against Khalid Sheikh Mohammed secret. But given the Administration's track record in these recent cases, we can't just take the government's word for it.