“Marty Lederman”:http://balkin.blogspot.com/2007/08/jane-mayer-on-black-sites.html on Jane Mayer’s extraordinary – and horrible – _New Yorker_ “story”:http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer?printable=true on the routinization of torture in CIA ‘black sites’ (I suspect he’s also writing on the basis of his own sources here).

I have repeatedly argued here that there is no justification for keeping secret what interrogation techniques the CIA is permitted to use. In particular, it is absurd to “classify” something that is revealed to people outside the government who have no duty of confidentiality, i.e., to the detainees on whom the techniques are used. Those persons are free to disclose the information to others, as they have now done to Red Cross interviewers. Because of this, it becomes necessary to detain these persons, in isolation, presumably forever, _in order to impose a prior restraint on their speech concerning their knowledge of what our government has done to them._ In a strange sort of circular logic, the interrogation becomes the justification for indefinite detention, even long after the interrogation ends. Thus, as Jane writes, “[t]he utter isolation of these detainees has been described as essential to America’s national security,” so that they cannot reveal what happened to them.

I’d like to see some of our libertarian law professor colleagues give their views on this. For example, “Eugene Volokh”:http://volokh.com/archives/archive_2007_07_29-2007_08_04.shtml#1186164435 recently – and correctly in my view – has blogged about the problems in issuing a restraining order on a possible paedophile who hasn’t committed any crimes, talking about the dangers of “letting courts restrain movement simply based on people’s even repugnant ideologies and desires.” Does he believe that imprisoning people without trial (however repugnant their ideologies and desires), torturing them and continuing to imprison them indefinitely while preventing them from having contact with lawyers because they might reveal the methods that have been used to torture them is justifiable? One would hope not, but he and other prominent law professors in the blogosphere have thus far proved “remarkably”:https://crookedtimber.org/2004/06/13/eugene-volokh-hits-the-eject-button/ “unwilling”:https://crookedtimber.org/2005/11/06/libertarian-litmus-test/ to express more then a certain degree of perhaps-eggs-must-be-broken-to-make-an-omelette type squeamishness about the topics of torture and indefinite detention before swiftly changing the subject to something more congenial. Some kinds of restraints on free speech are more worthy of comment than others, it would seem (perhaps they’ll prove me wrong).