One of the most frequent canards trotted out by those against trying terror suspects in civilian courts is the idea that classified information will be revealed through discovery. Glenn Greenwald notes today that the doctrine covering the disclosure of classified information in court, the Classified Information Procedures Act (CIPA), is being used to block the maltreatment of one of the alleged al-Qaeda members involved in the al-Qaeda embassy bombing, Ahmed Khalfan Ghailani. Judge Lewis Kaplan has imposed a protective order that allows the defense lawyers to review classified info only in a secure room, and that information can't be disclosed to Ghailani without government permission.
Greenwald writes:
Even during the Bush years, numerous defendants accused of terrorist acts were tried and convicted in federal courts -- John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla. Those spewing the latest right-wing scare tactic (Osama bin Laden will learn everything if we have trials!) cannot point to a single piece of classified information that was disclosed as a result of any of these trials. If that were a legitimate fear, wouldn't they be able to?
Greenwald's argument is that the CIPA is too strict, describing the guidelines as "draconian measures so extreme that it's hard to believe they can exist in a judicial system that it supposed to be open and transparent."
I just want to add that one of the examples most often cited by conservatives in opposition to the trial is the identity of unindicted co-conspirators disclosed during the trial of Sheik Omar Abdel Rahman in 1995. Here's Michael Mukasey giving a typical version of the spiel:
Moreover, the rules for conducting criminal trials in federal courts have been fashioned to prosecute conventional crimes by conventional criminals. Defendants are granted access to information relating to their case that might be useful in meeting the charges and shaping a defense, without regard to the wider impact such information might have. That can provide a cornucopia of valuable information to terrorists, both those in custody and those at large.
Thus, in the multidefendant terrorism prosecution of Sheik Omar Abdel Rahman and others that I presided over in 1995 in federal district court in Manhattan, the government was required to disclose, as it is routinely in conspiracy cases, the identity of all known co-conspirators, regardless of whether they are charged as defendants. One of those co-conspirators, relatively obscure in 1995, was Osama bin Laden. It was later learned that soon after the government's disclosure the list of unindicted co-conspirators had made its way to bin Laden in Khartoum, Sudan, where he then resided. He was able to learn not only that the government was aware of him, but also who else the government was aware of.
Notice that Mukasey says "valuable" information, not "classified" information. Nevertheless, people arguing against civilian trials do as best they can to conflate the two by implication if not outright deception -- the idea being that something terribly valuable had been disclosed as a result of trying a terrorist in a civilian court.
In fact, bin Laden had been calling for "jihad" against the U.S. since 1992, so the idea that he discovered that we were "aware" of him in 1995 is absurd. The 9/11 Commission Report notes that he had been calling for holy war against the U.S. for at least three years by that point. If OBL was "relatively obscure," it wasn't because he was trying to keep a low profile.
At any rate, for the 9/11 trial to have the intended public relations effect internationally, the government is going to have to fess up to some of the things that were done in the name of "security" -- and I have little doubt that can be done without compromising valuable intelligence information.
-- A. Serwer
