It wasn’t just detainees who were tortured at Gitmo, but anything remotely resembling logic as well.   ProPublica reports that the government, in its finest Catch-22 reasoning, has taken the position that five detainees can’t utter words in their own defense at their military trials because their own words are “presumptively classified.”

Can the government declare anything a Guantanamo detainee does or says automatically classified?

That’s the question posed by two challenges to a government order declaring [1] “any and all statements” by the five detainees allegedly behind the 9/11 attacks “presumptively classified.” That includes their own accounts of their treatment, and even torture, at the hands of the U.S. government.

And it’s not just the detainees who need to shut their trap, but their lawyers:

The “presumptive classification” order extends to both detainees’ testimony and their discussions with their lawyers. In other words, anything said by a detainee, whether in court or to their counsel, will first need censors’ stamp of approval before it can become public.

Absurd? Not according to the government’s argument.

After all, it’s not like the detainees didn’t ask to be exposed to secret CIA torture methods.  Oh wait, they didn’t. So the argument is that the CIA tortured the detainees, and by dint of being tortured, a classified method (or is it an activity?), they are precluded from defending themselves.  Circular doesn’t get much better than this.

As for the lawyers, it’s not as if they didn’t sign off on keeping the government’s secrets secret.

Anyone involved in the case has to sign a “memorandum of understanding [24]” indicating their responsibility for access to classified information, as defined in the protective order. The defense needs to give warning when they plan to use classified information, and to submit any information they want unclassified to a government-appointed security officer for review.

In practice, according to Connell, this means lawyers have to get approval to use even their client’s birthdate, if the source for it is the detainee’s—presumptively classified—statement. The resulting difficulties for the defense, the motion maintains, violate attorney-client privilege and Sixth Amendment protections.

What can’t be ignored about such agreements is that they offer no alternative.  Much like the SAMs in the Lynne Stewart case, no one will make you sign off on them, but failure to do so means you don’t get to represent your client.  At the time a lawyer signs off, he has no clue what the impact will subsequently be since he has no idea what information will be involved.  Like a waiver of liability, you’re expected to agree first and find out what you’re agreeing to later. Great deal if you can get it, and the government can because it has the keys to the cell.

The ACLU is challenging the government’s position, which impacts not only the detainees in their ability to defend, but the media in its ability to report.  There is a 40 second delay in closed circuit transmission of proceeding to a media room, just in case government censors feel that something said is too classy for the media to hear.

The ACLU’s motion [7] takes issue with the idea that the government has declared detainees’ “personal knowledge of their detention and treatment in U.S. custody” classified. Their exposure to classified information was forced upon them [8], the ACLU states, in CIA detention and interrogation programs that are now outlawed.

The ACLU’s brief challenges [10] whether that authority could be extended “categorically to human beings under the government’s control.” [emphasis in original]. The ACLU also argues that the detainees were not in any kind of contractual relationship which would make them liable for the classified information they were exposed to.

Making this all the more Kafkaesque, while the detainees were in no “contractual relationship” with the government, unless some sort of agreement is deemed imputed by waterboarding, their lawyers are, having signed off on the memorandum of understanding.

On the one hand, it’s completely understandable that the government needs to protect our national security secrets, such as the particulars of how the CIA uses its special techniques to persuade enemy combatants to spill their guts, whether literally or figuratively.  After all, isn’t the nation entitled to do what it needs to do to protect our American way of life without making us lose sleep over its propriety?

But then, why bother with the charade of a trial if the lawyers defending the detainees are hogtied to begin with?  If the United States has no plan to allow the detainees to defend themselves, then the outcome is not only a foregone conclusion, but will make really lousy entertainment and won’t do much to keep American’s from flipping the dial to something really classy, like the Real Housewives of New Jersey.