When arguing that civilian trials can't protect classified information, National Review's Andy McCarthy has long pointed to the disclosure of a list of unindicted co-conspirators, including Osama bin Laden, as a part of the 1995 trial Omar Abdul Rahman for the first World Trade Center bombing. That list then reportedly reached al-Qaeda. The only problem is the list wasn't classified, and McCarthy -- then part of the team prosecuting Rahman -- didn't invoke the Classified Information Procedures Act or ask for a protective order that would have restricted access to the list. Spencer Ackerman reports:
Asked why he never invoked CIPA in the case, McCarthy replied, “To be candid with you, I never thought it was worth either the five seconds it would have taken the judge to orally order it, or the piece of paper it was written on if it was written on a piece of paper, because one of the things I really came away thinking as a prosecutor who's done mafia cases and drug cases and all these other cases and then was finally doing national security cases, people who are looking to blow up buildings don't really care about nondisclosure orders.”
Jim Benjamin, one of the authors of a Human Rights First* report on how federal courts handle classified information told Ackerman that McCarthy "did a spectacular job on the Blind Sheikh prosecution and throughout his career as a prosecutor in the Southern District,” so this isn't a question of McCarthy's competence. It's also unclear to me what effect leaking the list would have had in the first place, since according to the 9/11 Commission Report, bin Laden had been issuing fatwas calling for jihad against the United States since 1992.
But it is remarkable that McCarthy has used this as an example of courts being unable to handle classified information, since the list wasn't classified, and McCarthy, in his professional capacity as an attorney, failed to do anything to protect it.
Here's how McCarthy explains his ongoing concern:
But I don't think there can be any question that the day-to-day dishing out of discovery — we're talking now about thousands of pages of information that get turned over. And I will tell you, these are problems you deal with on a day-to-day basis at trial.
I'm here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified -- possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won't begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that "as a practical matter, there’s very little difference" between the process for dealing with classified information in military commissions and civilian court.
That "day to day" process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It's also happening twice, once prior to a hearing that will determine whether Mohammed is an "unprivileged enemy belligerent," and then again as the evidence is reviewed prior to his likely trial.
Meanwhile, it's not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military's "Frequent Flier" sleep deprivation program was disclosed during Mohammed Jawad's military commission, which seems to me a much more significant disclosure than bin Laden finding out we're after him several years after he's issued fatwas calling for Muslims to fight the U.S.
-- A. Serwer
