‘Urban Myth’ Behind Graham’s Support for 9/11 Military Trials

Thursday, March 11, 2010 at 6:00 am
Sen. Lindsey Graham (R-S.C.) (WDCpix)

Sen. Lindsey Graham (R-S.C.) (WDCpix)

Lindsey Graham is on the verge of winning an argument. Graham, the Republican senator from South Carolina, has pledged for weeks to deliver the votes from his fellow Republicans to finally close the detention facility at Guantanamo Bay, a campaign pledge from President Obama, if and only if Obama agrees try Khalid Shaikh Mohammed and the other 9/11 conspirators in a military commission. On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.

[Security1] There’s just one problem. Graham’s rationale for why KSM needs to be tried in a military commission and not a civilian court has to do with the procedures in the commissions for protecting classified information. But the revisions to the military commissions approved by Congress last year — with significant input from Graham himself — removed any significant difference between how classified information is handled in military and civilian venues. Accordingly, Chris Anders, a lobbyist for the American Civil Liberties Union, said Graham’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.

Asked to specify Graham’s objection to trying KSM in civilian court, Kevin Bishop, Graham’s chief spokesman, said that the senator is concerned about the potential for releasing classified information in open court. “Military justice and the military framework — a military commission — would allow us to better protect classified information,” Bishop said. Graham made a version of that argument on February 13 in the Republican radio address, referencing a 1995 terrorism trial and asserting, “valuable intelligence was compromised.”

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.

“Any concern about the treatment of classified information in federal court is a solution in search of a problem,” said Joshua Dratel, one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts, in the post-9/11 civilian courts and in every version of the military commissions. “There simply has not been a problem in handling classified information in civilian federal court trials.”

The commission rules for handling classified material only outpace CIPA for marginal aspects of trial procedures, such as explicitly prohibiting the disclosure of verbal testimony and not just documents — even though judges for years have considered the distinction meaningless and have prohibited all such disclosures. Accordingly, Attorney General Eric Holder testified to the Senate Judiciary Committee in November that “the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court,” making the two venues a distinction without a difference from the perspective of protecting sensitive material. “We can protect classified material during trial,” Holder said.

Dean Boyd, the spokesman for the Justice Department’s National Security Division, underscored the point. “Over the years, experienced prosecutors have worked closely with the intelligence community to protect classified information in such cases, using CIPA procedures, and have successfully prosecuted many terrorists while complying with the applicable rules,” Boyd said. “The system provided by CIPA for cases prosecuted in federal court has generally worked well in protecting classified information, while also ensuring fair, credible, and effective trials.”

The CIPA system was good enough for Graham during last’s year’s debate over the commissions, when he helped craft the provisions of the Military Commissions Act of 2009 governing classified information. On July 23, 2009, Sen. Carl Levin (D-Mich.) introduced those provisions into fiscal 2010 defense authorization, the vehicle for passage of the commissions act. “Madam President,” Levin said, “the amendment I now offer, along with Senators Graham and McCain, would modify the procedures for the handling of classified evidence by military commissions… It has the support of the Justice Department and the Department of Defense.”

Graham has other reasons for supporting a military commission for Khalid Shaikh Mohammed — “Khalid Shaikh Mohammed, if he’s not an enemy combatant, who is?” Bishop said; the Obama administration has abandoned the “enemy combatant” designation for suspected terrorists — but Graham’s specific objection to the civilian trial centers on a claimed distinction between civilian and military procedures for handling classified information.

During the 30 years CIPA has governed classified disclosures in civilian courts, “the government is always in control of what gets released publicly,” said Dratel. All officers of the court, from defense counsel to a judge’s clerks, must hold security clearances to view classified information in secure facilities. “There is a court security officer, some of the most competent people if not the most competent people in the government, who operate to control these situations.” When judges permit defense counsel like Dratel — never their clients — to view classified information relevant to a case, “it doesn’t go to me; it sits in a secure room in a courthouse or other government building that no one has access to except people with a key and a combination.”

Any piece of classified information defense counsel wishes to enter into evidence must be approved by a judge. “If a judge agrees with me, then the government has a choice,” Dratel continued. “It has the choice of either declassifying the information or offering a substitution that would satisfy due process — in other words, my right to present my defense while at the same time protecting the classified information. And most classified information, in my experience, is about sources and methods.” These procedures now form the basis for how military commissions handle classified information as well.

To underscore Graham’s concerns, Bishop cited the 1995 case of Omar Abdul Rahman, the “blind sheikh” successfully prosecuted for involvement in the conspiracy to bomb the World Trade Center in 1993, in which the government’s list of Rahman’s unindicted co-conspirators reportedly leaked out of the courtroom and made its way to Osama bin Laden. “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance,” Graham stated in his February radio address arguing against a civilian trial for KSM. “A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

In 2008, however, a lengthy investigation into the criminal justice system’s handling of terrorism cases sponsored by Human Rights First determined that the list was never classified — and that prosecutors on the case never even sought to “invoke CIPA or other protections regarding the names on the list of unindicted co-conspirators.” The report, written by two veterans of the U.S. Attorney’s office for the Southern District of New York who did not work on the case, continues, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.” One of the authors of the report, Richard Zabel, is now the chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York.

“If it had been classified and only available to [security-]cleared counsel, it never would have been circulated,” said Andrew Patel, one of the lawyers for Rahman’s co-conspirators. “This is the archetype of the government saying ‘we need additional tools’ when they failed to use the tools they had.”

Indeed, Holder addressed the Rahman disclosure in a November exchange with Sen. Orrin Hatch before the Senate Judiciary Committee. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder said. “The provisions designed to protect sources and methods in the military commissions are based on the CIPA Act that we use in [federal] courts.”

The ACLU’s Anders wondered whether the novelty of military commissions — especially as the legal rules under the commissions have changed three times since the Bush administration created them after 9/11 — might make them more likely avenues for inadvertent disclosure of classified information in a KSM trial. “Who is going to do a better job with applying the substantively difficult law protecting classified information,” Anders said, “federal judges who have regularly applied it in many cases, or military commission judges who have never even tried a complex criminal case, much less the most important international terrorism case in history?”

Dratel agreed, citing a case he argued at Guantanamo Bay in which a judge blurted out that something stated in court “probably” ought to have been classified. ” Any preference for military commissions based on some purported danger of release of classified information in federal courts is like worrying about ships going too far toward the horizon because they’ll fall off the edge of the earth,” he said. “It is simply without any factual foundation, and ignores the 30-year history of federal courts handling classified information in the context of criminal prosecutions.”

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Legal Seek Now » the explanation provided to me by Graham’s office - The Washington Independent.com
Pingback posted March 11, 2010 @ 9:44 am

[...] Original Post By Google News Click Here For The Entire Article [...]

Gavel Grab » Thursday Media Summary
Pingback posted March 11, 2010 @ 10:08 am

[...] Washington Independent: ?Urban Myth? Behind Graham?s Support for 9/11 Military Trials Spencer Ackerman – 3/11/2010 [...]

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Trackback posted March 11, 2010 @ 4:16 pm

Social comments and analytics for this post…

This post was mentioned on Twitter by emptywheel: RT @attackerman: The ‘Urban Myth’ at the heart of the argument for trying KSM in a military commission http://bit.ly/aHacm0...

Comment posted March 11, 2010 @ 4:27 pm

Lindsey Graham, not having a clue what he's talking about ? Imagine that. He's an asshat.

Comment posted March 11, 2010 @ 5:20 pm

I assume Graham does know what he's talking about, and is simply lying.

The Republicans want the venue changed for nothing more than the political optics of 'winning' that point by convincing the Administration to let them have it as the price for closing Gitmo. Then they can dishonestly parade it as something they did to make America 'safer', even though they know that characterization will be nonsense.

Comment posted March 12, 2010 @ 2:16 am

oboma is the female hillary dlc sell out. why arn't dems disabling the NONVERIFYABLE computerized election systems ?? do you trust this? you have corperations able to spend as much as they want and they count the votes also. and no one writes/says a word except for brads blog. it is all kabuki. robert parry has some new info on how regan skirted the cia's laws re no propaganda in usa by sending cia experts to the nsc. the MSM was nutered as a result. kabuki time

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Comment posted March 13, 2010 @ 3:11 am

Some of our leaders are anxious to keep the trials out of the USA for one reason only: we tortured those prisoners mercilessly and repeatedly. If that were to come out in a real courtroom (instead of a secretive off shore kangaroo court disguised as a military court), a lot of important people might get into a lot of trouble for torture. All the talk about security concerns is just cover. It's to cover for the torture.

The People’s Campaign for the Constitution Blog » Nothing up his sleeve?
Pingback posted March 14, 2010 @ 7:16 pm

[...] Lindsey Graham (R-SC) seems to be attempting to pull off a bit of legerdemain on President Obama. He has agreed to obtain the necessary votes from his Republican brethren to [...]

Comment posted March 16, 2010 @ 2:35 am

Truth: The Said Terrorists aren't. in a civilian court the truth really would come out. And the Cheny/bush dicks simply cant have that. To many people would hear a bunch of guys saying they never admitted to anything and those who can speak or interpret Arabic would contrdicte what the official interpreter is saying. How is it, after a bombing, that they show some dude talking in a foreign language and say hes claiming this and that. WAKE UP SHEEP.

Comment posted March 16, 2010 @ 8:05 am

With legal facts and history on the side of no difference in the handling of sensitive information between military commissions and civilian federal courts it begs the question of why we need military commissions?

There is only reason we need a kangaroo military commission. They will find a person guilty that politicians are afraid to find innocent in a court of law.

Further if the decision maker who decides which “justice system” will be used is a politician and not a Justice Department Official the decision will of course be one based on political considerations, not justice.

The Executive Branch is made up of politicians.

Holder Defends Civilian Courts for Terror Suspects | Bloggers For Change
Pingback posted March 17, 2010 @ 10:26 pm

[...] information: Holder noted (as Spencer Ackerman reported last week) that the procedures for handling classified information in military commissions are [...]

Comment posted March 18, 2010 @ 3:18 pm

Well written and insightful article.

Wonk Room » Krauthammer: Let’s Just Pretend Shahzad Has Been Handled Poorly
Pingback posted May 7, 2010 @ 3:31 pm

[...] of a “war on terror,” whose opposition to civilian trials for terrorists is founded, as Spencer Ackerman reported, on an “urban myth” that military trials can better protect secret information than [...]

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With legal facts and history on the side of no difference in the handling of sensitive information between military commissions and civilian federal courts it begs the question of why we need military commissions?

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Apoplexy, Abdication, and an Indefinite Detention Without Trial for Khalid Shaikh Mohammed
Pingback posted November 13, 2010 @ 8:50 pm

[...] — need to contend that any other venue for trying or not-trying KSM is preferable. Graham may not have compelling arguments for his military-commissions and indefinite-detention advocacy. But politically, he’s got devastating ones — If KSM [...]

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