Conservatives have obsessively slammed the Classified Information Procedures Act, which regulates the disclosure of classified information in civilian courts proceedings, by claiming it would lead to terrorists getting top-secret information. This has never happened before. The only example conservatives regularly point to is the 1995 Sheik Omar Abdel Rahman case, in which the government simply failed to classify a list of un-indicted co-conspirators that made its way to Osama bin Laden -- who had declared war on the U.S. three years earlier anyway.
Again, the mythical disclosure of classified information in civilian court has never happened, over hundreds of terrorism cases.
This argument in favor of the military commissions for trying terrorists is flawed, but Spencer Ackerman reports today exactly how flawed it is:
But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act's fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane.
It makes sense that military courts would take guidance from the civilian courts in such matters, because military courts aren't used to trying terrorism cases. Former State Department Legal Adviser John Bellinger III said months ago that the Bush administration was moving to shore up military lawyers with civilian lawyers from the Justice Department, precisely because they have more experience in such matters.
Military commissions are haphazard. They tend to give out lighter sentences. They don't appear to offer any real "advantages" in terms of protecting classified information. Virtually the only "positive" is that they tend to offer the government more certainty of conviction.
-- A. Serwer
