DOD and CIA Can Decide Which Laws They Like

Yesterday, D.C. District Court Judge Royce Lamberth, presuming the “good faith” of the government, ruled that the Pentagon and CIA don’t have to turn over documents detailing the treatment of prisoners at Guantanamo Bay. The judge’s reasoning highlighted one of the more disturbing aspects of the recent revelations that the Defense Dept., with the aid of the Justice Dept., likely tortured prisoners in violation of U.S. and international law.

Can it ever make sense for a judge to presume the government’s “good faith” again?

In this Freedom of Information Act case, Lamberth was careful to note that federal case law requires him to assume the government’s good faith when it seeks to withhold information to protect national security. In fact, the laws the government relied on, the National Security Act of 1947 and the Central Intelligence Agency Act of 1949, specifically instruct the government to take steps to protect its intelligence “sources and methods.”

The American Civil Liberties Union had asked for the transcripts of statements from prisoners about the conditions of their confinement and interrogation methods used, with the understanding that those documents could reveal that U.S. officials illegally tortured prisoners at Guantanamo Bay. But the government is refusing, saying that a different law protects the agencies from revealing what they did –- whether it was illegal or not.

The upshot of all this is that the DOD and the CIA get to cherry-pick the laws they want to abide by. The Third Geneva Convention of 1949, for example, which says a detaining power may use “No physical or mental torture, nor any other form of coercion”?

Naah, let’s not follow that one. But the National Security and CIA Acts that protect the governments from disclosure? Now those are good laws — let’s pick them!

The court, in this case, could have decided, given the evidence that’s come out that the DOD and CIA have themselves broken the law, that the “good faith” presumption no longer applies. Lamberth then could have taken a look at the redacted portions of the documents, and decided for himself whether the prisoners’ descriptions of the conditions of their confinement or the interrogation methods used on them really would endanger national security –- as opposed to just endangering the future legal defense of senior government officials.