The Atlantic’s Caitlin Dickson reports:

By our count, on 63 days so far this year the paper’s reporters have relied on WikiLeaks documents as sources for their stories. Since April 25th is the 115th day of the year, that’s over half of all their issues this year. And just to be clear, we didn’t count stories that merely mentioned WikiLeaks or Julian Assange or Bradley Manning, only the ones that used documents from the site as a reporting source.

It now seems routine for WikiLeaks to serve as a source when it comes to American diplomacy, especially regarding the Middle East. Sometimes these stories are billed as revelations from WikiLeaks’ cache, such as the March 2 story by James Risen on the Qaddafi sons’ bitter business battles which was headlined, ”2 Qaddafis Fought Over Business, Cables Show.” But often the WikiLeak-ed documents are used as a stand-in for an American diplomatic spokesperson, source or expert.

The Atlantic’s review of the prominence of WikiLeaks as a source for The New York Times comes the same day as the Times reported on just who’s been detained at Guantánamo Bay since 9/11, part of another round of leaked secret files — though, interestingly, the Times had to get access from a different source given its relationship with WikiLeaks. The newly-leaked documents reveal that nearly 20 percent of the detainees were completely innocent civilians. Another 49 percent were low-ranking guerrillas of little utility to American intelligence.

WikiLeaks announced it will be revealing details on each detainee every day over the coming month. According to National Public Radio, the new information was made available to the The New York Times by another source, on the condition of anonymity; the two media outlets are reporting on the information in tandem.

In this latest secret documents release, WikiLeaks, headed by Julian Assange (who last week made TIME’s 2011 list of most influential people in the world), says it is “shining the light of truth on a notorious icon of the Bush administration’s ‘War on Terror.’”

All told, WikiLeaks released details on 758 out of 779 total cases of detainees at the Cuba prison — details obtained from thousands of pages worth of memoranda from the Joint Task Force at Guantánamo Bay to the U.S. Southern Command in Florida, from January 2002 to February 2009. Details include prisoners’ personal information, capture information, prisoners’ health assessments, given reasoning for detainment, detainees’ accounts, ‘enemy combatant’ status and photos of most of the 171 prisoners still held in the prison. In addition, the organization has released summaries of evidence and tribunal transcripts on the first 201 prisoners released between 2002 and 2004, which, according to WikiLeaks, have never before been made public.

Wikileaks says these documents reveal evidence that the U.S. detained innocent men by mistake and offered “substantial bounties” to allies for al-Qaeda or Taliban suspects.

From WikiLeaks:

Crucially, the files also contain detailed explanations of the supposed intelligence used to justify the prisoners’ detention. For many readers, these will be the most fascinating sections of the documents, as they seem to offer an extraordinary insight into the workings of US intelligence, but although many of the documents appear to promise proof of prisoners’ association with al-Qaeda or other terrorist organizations, extreme caution is required.

The documents draw on the testimony of witnesses — in most cases, the prisoners’ fellow prisoners — whose words are unreliable, either because they were subjected to torture or other forms of coercion (sometimes not in Guantánamo, but in secret prisons run by the CIA), or because they provided false statements to secure better treatment in Guantánamo.

As details on detainees — and the evidence against them — makes its way to the public, The New York Times, The Guardian, and National Public Radio have provided varying insights on what this information tells us about the how the U.S. government has handled Gitmo.

From The New York Times:

What began as a jury-rigged experiment after the 2001 terrorist attacks now seems like an enduring American institution, and the leaked files show why, by laying bare the patchwork and contradictory evidence that in many cases would never have stood up in criminal court or a military tribunal.

[...]

The government’s basic allegations against many detainees have long been public, and have often been challenged by prisoners and their lawyers. But the dossiers, prepared under the Bush administration, provide a deeper look at the frightening, if flawed, intelligence that has persuaded the Obama administration, too, that the prison cannot readily be closed.

[...]

The dossiers also show the seat-of-the-pants intelligence gathering in war zones that led to the incarcerations of innocent men for years in cases of mistaken identity or simple misfortune.

[...]

[F]or all the limitations of the files, they still offer an extraordinary look inside a prison that has long been known for its secrecy and for a struggle between the military that runs it — using constant surveillance, forced removal from cells and other tools to exert control — and detainees who often fought back with the limited tools available to them: hunger strikes, threats of retribution and hoarded contraband ranging from a metal screw to leftover food.

From The Guardian:

The files depict a system often focused less on containing dangerous terrorists or enemy fighters, than on extracting intelligence. Among inmates who proved harmless were an 89-year-old Afghan villager, suffering from senile dementia, and a 14-year-old boy who had been an innocent kidnap victim.

[...]

The range of those still held captive includes detainees who have been admittedly tortured so badly they can never be successfully tried, informers who must be protected from reprisals, and a group of Chinese Muslims from the Uighur minority who have nowhere to go.

One of those officially admitted to have been so maltreated that it amounted to torture is prisoner No 63, Maad al-Qahtani. He was captured more than nine years ago, fleeing from the site of Osama bin Laden’s last stand in the mountain caves of Tora Bora in 2001. The report says Qahtani, allegedly one of the “Dirty 30″ who were bin Laden’s bodyguards, must not be released: “HIGH risk, as he is likely to pose a threat to the US, its interests and allies.” The report’s military authors admit his admissions were obtained by what they call “harsh interrogation techniques in the early stages of detention.” But otherwise, the files make little mention of the widely-condemned techniques that were employed to obtain “intelligence” and “confessions” from detainees such as waterboarding, sleep deprivation and prolonged exposure to cold and loud music.

The files also detail how many innocents or marginal figures swept up by the Guantánamo dragnet because US forces thought they might be of some intelligence value.

A few key findings outlined by National Public Radio:

• A former detainee, Abu Sufian Ibrahim Ahmed Hamuda Bin Qumu, who is believed to be training rebel forces in Libya, has closer ties to al-Qaida than previously understood publicly.
• Tariq Mahmud Ahmad al Sawah, who claimed to have designed the prototype for a shoe bomb that failed to ignite on a U.S. plane in 2001, was recommended for release from the prison.
• Shaker Aamer, also known as Sawad al-Madani, said he had no connection to al-Qaida. His military assessment says he was Osama bin Laden’s personal English translator.
• Abd al-Rahim al-Nashiri, the suspected plotter of the USS Cole attack in Yemen, reported directly to Osama bin Laden.
• Guantanamo officials were aware that they had innocent men in captivity, yet it took months to return them to their home countries.
• One detainee from Yemen informed on so many of his fellow detainees that authorities decided the reliability of his information was “in question.”
• A Russian detainee was transferred to the control of Russian authorities, on the basis of assurances that he would be incarcerated back in Russia, only to be released from Russian custody a short time later. A Saudi detainee threatened to arrange the murder of “four or five” Americans in revenge for his imprisonment but offered not to follow through on the threat if he were paid $5 million to $15 million in compensation.

The Times and NPR have created a database featuring government documents, court records and media reports on the 779 detainees at Guantánamo.

In Crowley’s resignation statement, he does not apologize for his comments, instead taking “full responsibility” for them and exhorting the government to exercise power in a way that is “prudent and consistent with our laws and values.”

Crowley wasn’t the only public official last week to decry the ongoing treatment of Manning at the Marine Corps Brig in Quantico, Virginia. Rep. Dennis Kucinich (D-Ohio) announced back in February that he had requested an audience with Manning in Quantico. On Friday, he said in a radio interview that his request has not been officially denied, but that he has been bounced around the Department of Defense and two branches of the military for the last month without getting an answer. “The fact that he’s awaiting trial and they’re doing this to him raises serious questions about our criminal justice process.”

The news that Kucinich is being stonewalled in his attempts to visit Manning comes just days after a report that Rep. Allen West (R-Fla.), a freshman congressman affiliated with the Tea Party, will this week visit Guantánamo Bay with five other congressmen whose names have not been disclosed. The purpose of the visit is said to be an investigation of detainee treatment and a review of military trials at Guantánamo. West, a retired career Army officer, faced disciplinary action following a 2003 incident in which he used gunplay as an intimidation tactic during an interrogation in Iraq. He was ultimately ordered to pay a $5,000 fine but avoided court-martial.

Eliminates availability of funding for the construction of a military detention facility in Thomson, Illinois.

Restricts the transfer of detainees at Guantanamo Bay detention facility to certain countries where Al Qaeda has an active presence.

The full text of the bill isn’t yet available. Robert Gibbs, the White House spokesman, last week floated that the money to buy Thomson — key to the administration’s plan to close Guantanamo Bay — could come from the Justice Department’s budget, which is still before the congressional judiciary committees.

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

GUANTANAMO BAY — The military judge presiding over Omar Khadr’s military commission on Monday handed the 23-year old Canadian citizen something he’s grown accustomed to in his eight years in U.S. detention centers: delay.

[Security1]Col. Patrick Parrish today granted the government’s request to conduct an independent psychological examination of Khadr, who is charged with killing an Army Special Forces sergeant in Afghanistan in 2002. That exam, Parrish ruled, must occur before the defense can present its own expert mental-health witnesses in a hearing to argue that Khadr’s statements to his interrogators at Bagram Air Field and Guantanamo Bay ought to be inadmissible before the commission. The effect, said Khadr’s attorneys — who were reading Parrish’s ruling while holding an impromptu press briefing late Monday afternoon — will almost certainly be to pause the hearings for what the ruling calls “a period of four weeks” beginning next Monday.

“My general sense from a quick scan of the order that the judge doesn’t purport to actually compel Mr. Khadr to participate in the examination, but my expectation is that he will conclude that if Mr. Khadr does not participate, then it will be unfair for us to present our mental health testimony,” said Barry Coburn, one of Khadr’s attorneys. “It looks to me that what the judge is intending to do is adjourn, basically stop the hearing for a four-week period after the government completes presenting its evidence, which could occur tomorrow or the day after.”

Parrish’s order instructs defense counsel to advise the court by Friday if Khadr will consent to the psychological exam. Although Khadr’s attorneys said last week that they “tend to think he would not” consent, now that Parrish has ruled in the government’s favor, “I think it’s overwhelmingly likely that he will participate,” Coburn said. If so, then beginning on Monday, May 10, the government will have until June 7 to conclude the exam.

The delay also means a deferral in determining whether the latest version of the government’s military commissions for trying terrorism detainees — what officials hear have taken to calling “Military Commissions 4.2″ — will provide a modicum of justice for defendants. “The government has refused to tender interrogators as witnesses and for deposition by the defense,” said Jennifer Turner, a human-rights expert observing the trial for the American Civil Liberties Union. “The fact that this decision will delay the presentation by the defense witnesses and a real presentation of what happened to Omar Khadr is a concern.”

During opening statements last Wednesday, Coburn’s co-counsel, Kobie Flowers, argued that the government’s desired exam was unnecessary, since the government had “the same access to all the [Khadr mental health] records we have access to” and warned that Khadr would essentially be “incriminating himself by participating in their examination.” But Air Force Cpt. Christopher Eason, one of the prosecutors on the case, argued that the defense “cannot use [mental health] as a shield to protect their client from our experts and a sword to attack our evidence.”

The defense’s mental health experts, retired Army Brig. Gen. Stephen Xenakis and Dr. Kate Porterfield of New York University, intend to testify that Khadr’s youth — he was 15 when captured in Afghanistan — rendered all of the government’s interrogations inherently coercive to a degree that render them inadmissible for trial.

One aspect of that coercion emerged in testimony today from a former Army medic at Bagram called by the prosecution to testify. Khadr swore in his affidavit that while at Bagram, “the soldiers tied my hands above my head to the door frame or chained them to the ceiling and made me stand like that for hours at a time.” Mr. M, the pseudonym given to the medic, testified that on one occasion, he saw Khadr handcuffed to the frame of the outermost door to his cell, with his hands “lightly above eye level, about in line with his forehead” and “some type of a cloth hood” placed over his head.

Khadr sustained bullet wounds to his shoulder about three months before the incident, and Mr. M said that when he removed Khadr’s hood he observed Khadr crying — though more from being “very frustrated” than from pain, in his view. Mr. M testified that the guards placed Khadr in that position for “punishment” for an unknown infraction. He did not state how long Khadr was remained shackled.

Coburn called the testimony “the most substantial” piece of independent corroboration of Khadr’s affidavit to date. “All we have heard from the government, to my knowledge, in response to that affidavit has been skepticism,” he said. “I think it’s quite interesting, really, to see that a witness — not a witness that we called, but a witness the government called — has so directly and substantially corroborated an allegation of what I regard as egregious, inexcusable and repulsive abusive treatment… It’s torture.”

But before Parrish will indicate whether he agrees with Coburn — or, at least, that the behavior Khadr experienced materially impacts the admissibility of his statements to interrogators — the government will get to subject Khadr to psychiatric evaluation. While the government sought in its motion for the exam to exclude defense counsel from attending, Parrish’s ruling does not address that request, and both Coburn and Flowers said they did not expect Parrish to block their attendance. Accordingly, they dodged a question about whether they would premise Khadr’s participation on their ability to observe the exam.

Flowers expressed disappointment with Parrish’s ruling. The government’s psychological exam is “arguably a way for them to re-traumatize this guy,” Flowers said. “I do believe that it’s just completely unnecessary. They can get an expert, like it’s done all across this great country, and read what the reports are, read what the raw data is, and make a decision.”

The prosecution is expected to finish calling its witnesses as early as Tuesday, when the five-day hearing resumes. Parrish informed both the prosecution and the defense at the conclusion of Monday’s hearing that he would entertain arguments on the terms of the exam.

Coburn said that Parrish’s decision meant it was “perhaps a little bit less likely at this moment than it was a couple of hours ago” to keep to the scheduled July beginning for Khadr’s military commission. “I think that’s going to be a great disappointment to Mr. Khadr,” he said, “because he has been anxious to move forward with this.”

]]> http://washingtonindependent.com/83858/military-judges-ruling-likely-to-delay-gitmo-hearing/feed 11 http://washingtonindependent.com/83715/most-dramatic-testimony-of-9-11-era-expected-at-gitmo http://washingtonindependent.com/83715/most-dramatic-testimony-of-9-11-era-expected-at-gitmo#comments Mon, 03 May 2010 10:00:00 +0000 Spencer Ackerman http://washingtonindependent.com/?p=83715 GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if More...

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A sketch by courtroom artist Janet Hamlin of defendant Omar Khadr with his defense team as FBI Special Agent Robert Fuller testifies in front of a video of Khadr posing while allegedly making IEDs. (EPA/ZUMApress.com)

GUANTANAMO BAY — The pre-trial hearing for a 23-year old Canadian citizen tried before a military commission is likely to host some of the most dramatic testimony of the post-9/11 era this week. That is, if the government and defense attorneys don’t reach a plea deal to settle the case of Omar Khadr, who has been held in detention for nearly eight years and charged with the murder of a U.S. Special Forces soldier.

Khadr’s attorneys plan to call someone known only as “Interrogator #1″ to testify this week. According to attorneys Barry Coburn and Kobie Flowers, Interrogator #1 will testify to having personally threatened Khadr in 2002 with sending the then-15 year old son of an Osama bin Laden associate to Egypt to be raped if he did not cooperate with interrogators at Bagram Air Field in Afghanistan.

[Security1]Additionally, during cross-examination during the first four days of the hearing — in which Khadr’s attorneys are asking a military judge to exclude all of their client’s statements to his interrogators from the government’s case against him, arguing that they occurred under coercion and even torture — Khadr’s attorneys have asserted that the first person to have ever interrogated Khadr at Bagram was court-martialed from the military for participating in the abuse of detainees.

This interrogator appears to be a different person than Interrogator #1, since Coburn said in a Saturday press conference that the court-martialed interrogator was “someone whom I’d very much like to be here,” and Interrogator #1 is scheduled to testify. “If that person is not here, and testifies electronically, that would be disappointing to me, but the most important thing is that that witness testify,” Coburn continued. He would not answer any substantive questions about either interrogator or their possible testimony.

If either Interrogator #1 or the other “First Interrogator” testifies, their faces will be visible in the super-secure courtroom here and their names will not be revealed. But published reports indicate a few likely possibilities for their identities. Former Army Spc. Damien Corsetti, a military interrogator at Bagram in 2002, was acquitted by a court-martial of various disciplinary infractions, but has confessed to involvement in the abuse of detainees. “I firmly believe it was torture and unfortunately I took part in it,” Corsetti said of Khadr’s treatment at Bagram in a 2009 interview with the Toronto Star’s Michelle Shephard.

While Corsetti is not believed to have interrogated Khadr, he might still have threatened the 15-year old during detainee operations at Bagram, where Khadr was held after his July 2002 capture by U.S. troops before his transference to Guantanamo in October 2002. A Saudi man who was detained at Bagram has said that Corsetti threatened him with rape, according to a 2005 New York Times expose into detainee abuse at the prison.

That same report identified Joshua Claus as an Army specialist responsible for the violent deaths of two detainees at Bagram, named Habibullah and Dilawar, a few months after Khadr was transfered to Guantanamo. Claus served five months in military prison in 2005 after pleading guilty to assault and misrepresenting his involvement in the deaths to investigators. A former lawyer for Khadr said in 2008 that Claus conducted “virtually all” of Khadr’s Bagram interrogations.

Testimony from any interrogator about personal involvement in detainee abuse on behalf of an abused detainee will be a milestone for the military commissions, or for any other forum for post-9/11 justice. No other case has featured such a dramatic and potentially self-incriminatory development. Asked last week why an interrogator would potentially incriminate himself, Coburn replied, “I don’t know the answer to that.”

Any account from former interrogators about abusing Khadr will contrast sharply with the accounts of five interrogators who have testified thus far on behalf of the prosecution. Those interrogators, who worked for the FBI, the Naval Criminal Investigative Service and the Defense Intelligence Agency, have testified  that Khadr was a cooperative and good-natured detainee who cooperated with his Bagram and Guantanamo detainees without any coercion. All interrogated Khadr when he was 16 years old, and said he responded positively to such inducements as food from McDonald’s, car and motorcycle magazines, and the promise of what one called “Islamic children’s books.”

“If you notice the way the government is presenting evidence in this hearing, what we’re hearing from overwhelmingly are FBI agents or Naval Criminal Investigative Service agents who talked to Omar Khadr way later, long after he was initially detained,” Coburn told reporters Saturday when challenged about their accounts, indicating his witnesses would pre-date the government’s. “This was just sort of renegade conduct that occurred for a certain period of time, which is, from our point of view… something that poisoned the well.”

This week’s hearing will not resolve Khadr’s case. It’s to adjudicate the defense’s contention that initial mistreatment of Khadr in Bagram “poisoned the well” of evidence that the government can use against him during his scheduled July military commission — hence the testimony of the interrogators on the question of Khadr’s treatment.

But it’s possible that all remaining questions in Khadr’s case — from his treatment in detention to his alleged killing of U.S. Army SFC Christopher Speer — could be rendered moot.

Both the government and the defense have now publicly acknowledged negotiations to resolve Khadr’s case out of court. Anonymous administration officials told The Washington Post that they do not want the first military commission of the Obama administration to be against someone who was a juvenile when he was detained. Additionally, if the government loses the hearing to suppress ostensibly coerced evidence, it could threaten the viability of the commissions themselves, as all other detainees charged before the commissions could potentially cite Khadr’s case to argue that the circumstances of their detention are inherently coercive — thereby weakening the government’s cases against them, even in a forum like the military commissions that afford fewer rights to defendants than civilian courts.

But Coburn said on Saturday that his highest priority was securing the most favorable outcome possible for his client, not potentially assisting other detainees by pressing on with the so-called “suppression” hearing. “I don’t think that either I or Mr. Khadr or the other members of our team are thinking that much about the precedential value of what’s happening here as far as it might effect other detainees,” he said.

Even if there isn’t a plea deal announced this week, there’s another procedural snarl that would, at the least, delay the proceedings. Army Col. Patrick Parrish, the military judge presiding over Khadr’s case, said he would rule Monday on a request by the prosecution to subject Khadr to its own psychological screening — without defense counsel present. The prosecution said when it unveiled its request on court Wednesday that it anticipated needing “five weeks” for the desired examination. That would essentially freeze the suppression hearing in place for approximately a month without a resolution, making it more difficult to open Khadr’s actual military commission on schedule in July.

Uncomfortable with moving forward until Khadr knows his rights, Parrish told Khadr’s lawyers that either they can administer those rights by proxy at Camp Delta or he’ll order what’s called a “forced cell extraction” — having guards force Khadr into court. Khadr did not attend a pre-trial hearing this morning, and prosecutors and defense counsel sparred over whether that decision was actually voluntary.

But even if Parrish opts for the “forced cell extraction” (or FCE in military acronym-ese) that doesn’t necessarily mean Rear Adm. Thomas Copeman, the commander of the detention facility housing Khadr, will comply. “In the past Admiral Copeman has refused to do a FCE without a court order,” Navy Commander Brad Fagan, a spokesman for Copeman’s command, emailed reporters here. “As per Khadr and today’s events, we’d have to wait and see what the judge/court decides to do (i.e., if they decide to issue a court order or not).” Parrish, in other words, may have to issue a formal court order for the FCE — and see if Copeman complies.

A view from the recreation yard at Camp 4 of the Guantanamo Bay detention center (Photo by Spencer Ackerman)

GUANTANAMO BAY — Making the most of their first court appearance since President Obama halted and then resumed the military commissions, attorneys for Omar Khadr, the Canadian citizen held here since he was 15 years old and charged with murder and support for terrorism, launched a forceful case Wednesday afternoon that a military judge should bar from court all statements Khadr made to his interrogators for the last eight years.

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.”

A still from Keep America Safe's "Al Qaeda Seven" ad (YouTube) and Cully Stimson (heritage.org)

One of the things Charles “Cully” Stimson remembers about the interview that cost him his job is just how run down he was when it happened. His January 11, 2007 sit-down with Federal News Radio, said Stimson, was one of 40 interviews he’d given that week. That’s one of the reasons the deputy assistant secretary of defense for detainee affairs stumbled so badly when talking about a Freedom of Information Act request that would have revealed the names of attorneys who were defending prisoners detained at Gitmo.

[GOP1] “When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001,” said Stimson to Fed News, “those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks.”

The comment, coming only days after Democrats took charge of both houses of Congress, blew up in Stimson’s face. Within three weeks, he had resigned. He apologized to the lawyers that he “allegedly was slamming.” He would never have done such a thing. Cut to last week, when he saw an ad by Keep America Safe, a national security think tank founded by Liz Cheney and Bill Kristol, that demanded the names of attorneys who’d defended Gitmo detainees — what it called “the Al Qaeda Seven” — and gone on to work for the Department of Justice.

“I think the blowback against me,” Stimson told TWI, “especially the ad hominem attacks, was unfair. And I think that these ad hominem attacks — calling the Department of Justice, where I proudly served, the Department of Jihad — are disgusting.”

Over the weekend, Stimson joined 19 other conservative lawyers, many of them fellow veterans of George W. Bush’s administration, signed a letter condemning Keep America Safe for “a shameful series of attacks on attorneys in the Department of Justice.” The letter, written by Ben Wittes of the Brookings Institution, compared what the lawyers did to what John Adams did in defending the soldiers accused in the Boston Massacre. One reason Stimson signed the letter, he told TWI, was that his “controversial” 2007 episode would bring more attention to a cause he supported.

One week after Keep America Safe launched the campaign, the strategy of Stimson and co-signers like Ken Starr and David Rivkin appeared to have paid off with plenty of articles about their criticism and a partial apology from CNN for the way it packaged its segment on the subject. But the pushback is unlikely to become what critics hoped it might — a humbling moment for Cheney, Kristol, and neoconservatives who aim to move the administration’s national security policy closer to that of the Bush administration. Sources close to Keep America Safe acknowledged that its “Al Qaeda Seven” ad had played poorly in Washington, but were confident that the “conservatives versus Cheney” story had played itself out without dealing a substantial blow to national security conservatives.

On Monday, the effort by conservative attorneys to criticize Keep America Safe had apparently peaked. In op-eds and in conversations with TWI, other Bush administration veterans largely defended Cheney, even if they agreed that the TV ad had gone too far. Curt Levey, a Bush DOJ veteran who now runs the Committee for Justice — one of several conservative legal groups that vets Obama nominees for court slots — told TWI that the criticism could have been headed off had Sen. Chuck Grassley (R-Iowa) received, as he had requested, the names of the DOJ lawyers who’d done work for terrorism suspects. (The names, as Fox News would find, could be located with some digging on the internet.)

“Attorney General [Eric] Holder brought this controversy on himself by resisting Grassley’s reasonable request,” said Curt Levey. “Despite the usual rhetorical excesses of political ads, Keep America Safe has not argued that the Al Qaeda Seven’s past work disqualifies them from working at DOJ. So the Human Rights Watch letter is aimed, at least in part, at a straw man argument. I would add that it’s curious that many of the Democrats who defended Holder’s refusal to disclose are the very same folks who gleefully investigated every detail of the Bush Justice Department’s hiring practices in the hope of proving that the department deliberately tried to increase the paltry representation of conservatives among the ranks of DOJ’s career attorneys.”

A similar argument came from Marc Thiessen, a former speechwriter for Bush and Donald Rumsfeld, in the column he now writes for The Washington Post. “Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack?” wrote Thiessen. “Their critics did not demand simple transparency; they demanded heads. They called these individuals ‘war criminals’ and sought to have them fired, disbarred, impeached and even jailed. Where were the defenders of the ‘al-Qaeda seven” when a Spanish judge tried to indict the ‘Bush six‘? Philippe Sands, author of the ‘Torture Team,’ crowed: ‘This is the end of these people’s professional reputations!’ I don’t recall anyone accusing him of ‘shameful’ personal attacks.”

Hans Von Spakovsky, a former counsel to the Assistant Attorney General for Civil Rights in the Bush administration — and like Stimson, now a Heritage Foundation scholar — aligned himself with Cheney. “I don’t think it is unfair or somehow improper to criticize those lawyers who have volunteered to help the enemies of the United States who are dedicated to killing as many innocent Americans as possible and destroying our country,” Von Spakovsky told TWI. “I certainly don’t think those same lawyers should be in the Justice Department directing policy and making decisions on prosecutions of those same terrorists. That would be like hiring Mob lawyers in the Organized Crime and Narcotics Task Force or hiring someone who volunteered to defend the Klu Klux Klan in the Civil Rights Division. Those lawyers who all come from big firms have a wide choice of who to help on a pro bono basis and their choice of terrorists says a lot about them –- I would not hire them to represent my company, either, if I were still a corporate in-house counsel, because I would not want my company’s money subsidizing that kind of legal work.”

One week after Keep America Safe launched its campaign, there was more evidence of rallying behind Keep America Safe than of more conservatives turning on Cheney. Allies of the group laughed off the idea that Democrats could stoke more controversy by re-enacting the legislative drubbing that Republicans gave MoveOn.org for its 2007 ad asking whether Gen. David Petraeus would mislead in his testimony about Iraq and become “General Betray-Us.” Democrats, they argued, knew that they didn’t have a long-term winning argument to buttress the murmurs of conservative anger. In his conversation with TWI, Stimson poured cold water on any Democrats who hoped he’d become a steady critic of Keep America Safe.

“I like Bill Kristol,” he said. “I like Debra Burlingame. If I met Liz Cheney, I’m sure I’d like her, too.”