In Much-Cited Precedent for 9/11 Trial, Tools for Protecting Information Went Unused

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Friday, April 09, 2010 at 6:00 am
Andrew McCarthy

Andrew McCarthy (YouTube: Hoover Institution)

As Sen. Lindsey Graham (R-S.C.) works on a deal with the White House to stop the civilian trial for 9/11 architect Khalid Shaikh Mohammed, he has one overriding fear in mind: The disclosure of classified information that might occur in an open trial. Graham’s communications director, Kevin Bishop, told The Washington Independent last month that “military justice and the military framework — a military commission — would allow us to better protect classified information.” In a recent address, Graham intoned that “valuable intelligence was compromised” in a 15-year-old case, the New York trial of the “Blind Sheikh,” in which a list of unindicted co-conspirators leaked out from the court, and suggested the leak was a dangerous prologue for future terrorism trials.

[Security1]That disclosure has been a cause celebre on the right, frequently invoked to argue that the courts are incapable of handling terrorism cases. But perhaps the leading exponent of that overall review, the former prosecutor on the Blind Sheikh case, thinks the disclosure of the list is overblown. What’s more, he concedes that he didn’t make full use of the tools available to him as a prosecutor to prevent such disclosures, even as he continues to contend that civilian courts are inherently too perilous a venue for handling terrorism-related information.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” recalled Andrew McCarthy, a former New York federal prosecutor who now writes for National Review, referring to the Classified Information Procedures Act, the statute governing how courts handle classified information. “I suppose we could’ve done that.” Still, McCarthy, whom a February New York Times profile identified as one of the most influential conservative voices in the current debate over the propriety of trying terrorists in civilian courts, added, “I think too much is made of the example of the co-conspirator list.”

The case that gave rise to the disclosure was a sprawling, years-long prosecution into a conspiracy emerging from the 1993 attempt to blow up the World Trade Center. Led by the Egyptian-born Omar Abdul Rahman, known as the “Blind Sheikh,” a group of terrorists plotted to blow up a variety of high-value targets in the New York area, including the United Nations, the Lincoln and Holland Tunnels and the George Washington Bridge. McCarthy and his team — a legal all-star cast including Patrick Fitzgerald, later made famous as the special prosecutor on the Valerie Plame identity-leak case; and judge Michael Mukasey, the future attorney general — successfully convicted Rahman in 1995, thereby obtaining the first big American conviction against members of an Islamist terrorist conspiracy.

During the course of the trial, however, a list of unindicted co-conspirators distributed to defense counsel made its way out of the trial, reportedly making its way to Osama bin Laden. McCarthy has occasionally used the disclosure to contend that the courts are ill-suited to handling terrorism cases. “As underscored by al-Qaeda’s receipt of the co-conspirator list from our trial, the congenial rules of access to attorneys, paralegals, investigators and visitors make it a very simple matter for accused terrorists to transmit what they learn in discovery to their confederates — and we know they do so,” McCarthy writes in his 2008 memoir of his experience prosecuting the Blind Sheikh, “Willful Blindness.”

Graham magnified that contention in a February radio address sponsored by the Republican Party, even going so far as to imply that the disclosure paved the way for the 9/11 attacks: “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance. A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

Yet a review of the court records commissioned by TWI found no evidence that McCarthy and his fellow prosecutors made use of all the tools at their disposal to protect the list. Not only did the government not invoke CIPA, which would have restricted access to classified information in a case to officers of the court who hold security clearances and cannot remove information from secure facilities, prosecutors did not seek to place any protective orders on non-classified information like the co-conspirators list — which would have placed additionally restrictive rules on handling it. McCarthy said he believed Mukasey, the judge who heard the case, issued a “general protective order” for information shared with defense council for the trial’s discovery phase, but conceded, “We didn’t go piece by piece of discovery to the court for a protective order.” An individual close to the case who would not speak for attribution said there was never any protective order over the co-conspirator list, a finding borne out by TWI’s examination of the court record. Mukasey, through a spokesman, declined to comment.

A 2008 study conducted for the civil liberties organization Human Rights First examined how the courts have handled hundreds of terrorism prosecutions before and after 9/11 and found negligible, if any, disclosures of classified or sensitive information. The study, written by two former federal prosecutors who, like McCarthy, worked for the U.S. Attorney’s Office for the Southern District of New York, wrote of the co-conspirator list, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.”

Jim Benjamin, one of the authors of the study — whom McCarthy praised for “going out of their way to be fair and get[ting] the facts accurate” — clarified that he does not consider McCarthy or anyone else prosecuting the Blind Sheikh to be negligent. “Andy did a spectacular job on the Blind Sheikh prosecution and throughout his career as a prosecutor in the Southern District,” Benjamin, now with the law firm Akin Gump, said in an interivew. “I don’t criticize him for anything he did on the Blind Sheikh case, including not seeking a protective order, although doing so has become routine practice in terrorism cases today. The bottom line is that no system is ever going to be perfect, no matter how well intentioned or diligent the lawyers were, and Andy was certainly both.”

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.”

But the lack of a protective order or a CIPA invocation does beg the question of whether it’s fair to indict the entire criminal justice system as incapable of handling terrorism cases if prosecutors in a pre-9/11 case didn’t use all the tools available to them to prevent unwarranted disclosure. For his part, McCarthy believes that the focus on the disclosure of the co-conspirator list misses the forest for the trees in terms of the access to information that civilian courts openly provide — particularly information that doesn’t even rise to the level of sensitive, let alone classified — a prospect that unnerves him when considering terrorism cases.

“The co-conspirator list is just a single instance of a much broader problem in terrorism cases,” McCarthy said. “Everything that goes on in the way of not only disclosure under the rules, but more importantly, testimony in a courtroom is a problem in terms of the degree to which it edifies the enemy. These are rules that are made for normal trials that don’t involve national security situations when you’re dealing with a faction that you’re at war with. At the time that our trial took place, the United States certainly wasn”t in a state of war, even if the other side was. 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.”

Benjamin, whose 2008 study of terrorism trials examined hundreds of cases, responded that he was unaware of “examples where that scenario has unfolded and there has been a security breach as a result.” If anything, he continued, the fact that opponents of civilian trials for terrorists point to the disclosure of the co-conspirator list indicates that the courts are robustly capable of convicting terrorists without running the risk of dangerous disclosures.

“Although any leak of sensitive information is a serious matter, I think this one incident from 15 years ago tends to be given too much weight in the broader debate about the ability of federal courts to safeguard classified evidence,” Benjamin said. “When you stack up this single incident against the scores of cases where CIPA has been invoked and there haven’t been leaks, I think the better conclusion to draw is the opposite one — that the civilian courts have generally been able to handle terrorism cases effectively and without jeopardizing national security.”

That’s a conclusion fervently embraced by Attorney General Eric Holder, who has been asked about the co-conspirator list by members of Congress. “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 told the Senate Judiciary Committee in November. “It is my firm belief that through the use of CIPA, we can protect information in Article III [federal] courts in the same way that they can be protected in military commissions.”

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33 Comments

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cynthia kouril
Comment posted April 9, 2010 @ 12:04 pm

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.”

1) Under CIPA, the people who would have been able to see the secret inforamtion are not the people who want to blow things up, it's lawyers.

2) Even for non classified information, you can get an “attorney's eyes only” protective order, again, the people who want to blow things up and don't care about cort orders, would not have access to the info at all.


SteveL
Comment posted April 9, 2010 @ 12:43 pm

I'm not a lawyer, but I had the same reaction that the much-better-informed Ms. Kouril did: McCarthy's response was not candid at all, but rather was dishonest bluster designed to obfuscate.


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strangely_enough
Comment posted April 9, 2010 @ 7:38 pm

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” recalled Andrew McCarthy

Shouldn't that right there call into question anything McCarthy says on the subject? This sounds like a matter of competence.
And the chutzpah, and duplicity, of using McCarthy's non-action as a partisan talking point in favor of military trials…


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triathlon
Comment posted April 9, 2010 @ 9:30 pm

ANAT KAMM / [AIPAC/AZC] AFFAIR

[Where is the connection?]

So, just what is the connection between the Anat Kamm Affair and the [AIPAC/AZC] The American Israeli Public Affairs Committee/American Zionist Council, everything. First it has to be understood just who is running the show, where is the central hub, and who they really are, [AIPAC/AZC] is the Jewish Mafia, and yes Rahm Emanuel along with the rest of the family are the Jewish Mob Family from Halsted Street, in Chicago. Now, if your having a hard time wrapping your head around this, look at the reality, every member of the elected [Federal] government, shows their faces at the quarterly meeting of the [AIPAC/AZC], and everyone pledges their undying support to the Unshakable Special Relationship, as they receive their bribes from the Organization. And for those who don’t get on board and dare to cross them, who put country above self interests, [AIPAC/AZC] controlling the lions share of the Media use’s it as an effective weapon, of character assassinations, using, [hit job] tactics, with utter disregard for truth, of targeted libelous distortion of records, based upon fabrications, falsehoods, and selective misquotes, along with E-mail barrages across the Internet.

[All Roads Lead to the New Rome]

Where does the inter-connection between the head of the Israeli-American Empire, take place, of course on the not so neutral grounds of [AIPAC/AZC], all roads lead to the New Rome. So, what does this have to do with the Anat Kamm Affair, everything, there are [2K] Two-Thousand pages from the [IDF] Israeli Defense Force, Databanks of proof of illegal activates conducted by the [IDF] connecting the dots from beginning to end thru the intricate maze, on computer [CD’s, Flash-Drives, and on Hard-Copy] all in the hand of one, Israeli reporter, name Uri Blau, hiding in the [UK] United Kingdom and under their protection, given to him by a Whistle Blower named Anat Kamm, showing how [AIPAC/AZC] using the [IDF] as their agency in Israel, illegally paving the way for the eviction, and deportation out of Israel of Palestinian families, taking over their properties illegal , without even Israeli permits issued, that was taken care of by greasing a few palms, followed by the construction of roads, schools, synagogues, yeshivas, and police stations now underway all of which are traced back to, you guessed it [AIPAC/AZC] of [75%] Seventy-Five percent of the outer first defensive ring settlements around the Eternal City of Jerusalem, with [30] Thirty projects on previously privately owned Palestinian land.

[Follow the Money]

Follow the money! The money trail traces possibly thru the Ehud Barak Ltd. Consulting Company for one, directly to either [AIPAC/AZC] or too such possible front firms as Florida Construction Company owner billionaire Irving Moskowitz with greasing the palm payments having been made to the very top on both sides of the world and every country on the face of the planet and their leadership, including Ariel Sharon on one side of the world and at least [300] Three-Hundred Federally Elected Representative [55%] Fifty-Five Percent of those in office, on the opposite side of the world, as we stated just for starters. Money spent on everything from paying for targeted assassinations in every country spanning the globe, footing the cost for forged Passports, the whole double zero, James Bond thing, right down to throwing people out of their homes to make way for the Eternal City to become the Closed Capital of Israel what ever the cost, [AIPAC/AZC] will find the cash. The [AIPAC/AZC] is hard at work spending a lot of Doe-Ray-Me, trying to make this thing simply go away, they got the power, the question is for just how long, until that Money Trail like the perfection of Nazis paperwork is their down fall?

HERCULE TRIATHLON SAVINIEN


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Alex__S
Comment posted April 12, 2010 @ 8:49 pm

Of course this is nonsense; with the exception of identities of deep-cover agents (or information which could be used to identify them), specific troop/equipment positions, and ongoing criminal investigations, the only reason government seeks to keep information classified is to cover up its own crimes and stage trials to convict convenient “patsies” like KSM… “Patsy” in quotes, because he quite clearly was involved in the 9/11 attacks indirectly, yet the Federal government clearly wishes to prevent him from discussing the broader implications of his role in the plot in public. That might be embarrassing for the CIA-offspring ISI, its former head Gen. Mahmoud Ahmed, and those he met with during his September 2001 stay in DC, such as Condoleeza Rice, not to mention former president Musharraf, and its unconditional supporters in the White House. Lest we forget, the US's direct military support for the Pakistani regime increased from a pre-9/11 annual rate of $3 million to a post-9/11 $1.5 billion! There's also the little matter of ISI money funneled directly to Mohammed Atta in the months before 9/11; though KSM was only peripherally involved in this transaction, he certainly would have knowledge of it.

A public trial of KSM might also reveal that he personally decapitated Daniel Pearl, not merely because he was an American Jew, but because he was investigating… Well, we don't know exactly what, but something involving the network of ISI-supported Islamist terrorist groups in Pakistan, their connection to Al Qaeda, and possibly their attempts to attain nuclear weapons.

Unfortunately, I have no hope for a civilian trial at this point. In a complete reversal of dozens of campaign promises, Pres. Obama has embraced the State Secrets privilege and BS claims of “national security” in the name of “looking forward” on issues like executive branch criminality (i.e. torture)… It's hard to imagine that his lack of spine towards the national security community will result in a fair, open, honest trial for KSM if he won't even release photos of widely-known prisoner abuse.


God Bless America
Comment posted April 13, 2010 @ 8:40 pm

“prosecutors did not seek to place any protective orders on non-classified information like the co-conspirators list”

CIPA only applies to classified information. So McCarthy couldn't have applied for CIPA protection for the co-conspirator as this article repeatedly implies.

A “protective order” is something completely different which can be issued in any trial during discovery relating to any type of information – be it classified or non-classified.


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