But if there is to be credibility for the justice handed out by the tribunals, or the defendants appeals to federal court on their unlawful combatant status, there must be openness. Bush intends no such thing. He knows he's lied to the American people. Torture has been a routine practice since 9/11, much of it clearly illegal. He doesn't want to be impeached.
washingtonpost.com
BURIED WITHIN a recent government brief in the case of Guantanamo Bay inmate Majid Khan is one of the more disturbing arguments the Bush administration has advanced in the legal struggles surrounding the war on terrorism. Mr. Khan was one of the al-Qaeda suspects who was detained in a secret prison of the CIA and subjected to "alternative" interrogation tactics -- the administration's chilling phrase for methods most people regard as torture. Now the government is arguing that by subjecting detainees to such treatment, the CIA gives them "top secret" classified information -- and the government can then take extraordinary measures to keep them quiet about it. If this argument carries the day, it will make virtually impossible any accountability for the administration's treatment of top al-Qaeda detainees. And it will also ensure that key parts of any military trials get litigated in secrecy.
The trouble is that at least some of the secrets the government is trying to protect are the very techniques used against people such as Mr. Khan -- and its means of protecting them is to muzzle him about what the CIA did to him. CIA official Marilyn A. Dorn said in an affidavit that Mr. Khan might reveal "the conditions of detention and specific alternative interrogation procedures." In other words, grossly mistreating a detainee now justifies keeping him quiet.
[...]The problem with this argument is not just its Kafkaesque sheen. If the courts accept it, it would have vast practical implications. The integrity of any military trials of the high-value detainees will depend on their excluding evidence obtained by unduly coercive means. By the logic of the government's argument, however, all of that litigation will have to take place in secret. Detainees are also supposed to be able to appeal their status as enemy combatants to the federal appeals court here in Washington. The government's logic would all but assure that the bulk of any such appeal would be secret as well. So accepting this theory would mean that no claim of torture could be resolved in a transparent and accountable fashion. Given the importance of open trials for the high-value detainees, it's hard to imagine a principle that would more thwart the effort to bring them credibly to justice.
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