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Classified: Perverting Democracy by Preventing Disclosure

Whether you believe the US Constitution should be applied literally or think the authors intentionally left room for interpretation by future generations

Whether you believe the US Constitution should be applied literally or think the authors intentionally left room for interpretation by future generations, it is generally accepted that our nation’s founding document originates form the notion that government must be guided by the will of those who consent to be governed.

The lifeblood of any such democracy is an informed citizenry, which, provided with facts and context, can properly assess the course of the government’s actions. Informed decision-making, in turn, requires open access to relevant information. Unfortunately, over the past several years, we in the United States have seen a concerted effort by our government to prevent massive amounts of revealing information from ever seeing the light of day.

Our Founding Fathers understood – and feared – the dangers of those in power operating outside the scrutiny of their less powerful constituents. Nonetheless, as I have discovered as legal counsel to Guantanamo Bay detainee Fayiz al-Kandari, the government seems dedicated to preventing information from coming to light and minimizing the significance of any information that does manage to escape.

The government is, in effect, taking a black marker to everything it believes could be viewed in a negative light and declaring it “classified” in the name of “security.” Thus, I contend the government is using its classification power as an offensive sword rather than a defensive shield. Is “not wanting the public to know” or “preventing embarrassment” standing alone sufficient to prevent disclosure and discussion?

When something is classified by our government at a bureaucratic level, we as Americans tend to assume there is logic behind the decision. We are thereby lulled into a false sense of propriety. We assume that, in policing itself, our government is acting in the best interests of its citizens. Sadly, as long as someone assures us we are safe, we too often abdicate our right to be fully informed. Accordingly, we fail to demand access to full information concerning our government’s actions.

As noted, I represent Fayiz al-Kandari, a man who has been held for 8½ years in a cage in Guantanamo Bay, Cuba. His case is very simple: he is an Arab who was doing charity work in Afghanistan and was sold to American forces in response to a “bounty” on Arabs. Unfortunately, all of the hearsay evidence in Fayiz’ factually straight-forward case has been classified by the government, not because it would reveal state secrets, but because the information is both unreliable and does not support the government’s case. As a result, it is impossible to discuss his case or demonstrate his innocence.

It is important to remember that the same government officials who determine what is to be classified have recently been proven to be not only misguided, but completely wrong in virtually every area of forecasting intelligence for the past decade. Still, when it comes to the evidence in my client’s case, these same people are presumed to be laser accurate, rendering proof and court proceedings completely unnecessary if Fayiz is selected to be one of the fifty Muslims indefinitely detained.

I hope Americans will look beyond what their government expects them to believe. Americans have the right to know what their government is really doing in their name, and we should not let our top intelligence officials hide behind undemocratic, specious, and often dangerous assertions of “national security.” Today it may be a caged Muslim’s in Cuba; but tomorrow it could be you, since secrecy in the name of security now trumps informed debate and individual liberties.

The views expressed in this article do not represent the views of the Department of Defense or the United States government. Lt. Col. Wingard is a military lawyer who represents Fayiz al-Kandari and has served for 26 years in the military. When not on active duty, he is a public defender in the city of Pittsburgh.

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