Parrish issued the admonishment and said he hoped he wouldn’t have to go into classified session. But he did not make a finding from the bench that any reporter here actually violated the order.

Obviously I’m an interested party here. But neither myself nor any of my colleagues have relied on information that was entered into the unclassified court record to determine, and determine rather easily, the identities of certain witnesses or potential witnesses. It appears curious to admonish reporters for following information revealed in open court.

The defense has asked several witnesses so far if they were aware that Interrogator #1 was court-martialed for detainee abuse. But that was as specific as it got — until now. Lt. Col. Jon Jackson, Khadr’s military lawyer, asked an Army master sergeant who worked with Interrogator #1 — known to us as Interrogator #2 — if he was aware that Interrogator #1 forced a detainee to kiss a guard’s boots and roll around on the floor.

This is from an account of a guilty plea in a court martial recounted in an Associated Press piece from August 23, 2005:

Spc. Glendale C. Walls admitted that he stood by as former Sgt. Selena M. Salcedo lifted a detainee known as Dilawar by his ear and as former Spc. Joshua R. Claus made another detainee roll around on the floor and kiss Walls’ boots.

I got that from Nexis, but you can find an online version of that AP story here. It’s unclear why the defense would put out identifying information about Interrogator #1. I reiterate that Interrogator #1 has not testified to anything yet, so this is all speculation on my part. (Thanks to an extremely alert reporter here, Michelle Shephard of the Toronto Star — who literally wrote the book on Khadr — who called my attention to Jackson’s comment.)

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/83760/how-many-recorded-khadr-interrogations-exist http://washingtonindependent.com/83760/how-many-recorded-khadr-interrogations-exist#comments Mon, 03 May 2010 12:25:55 +0000 Spencer Ackerman http://washingtonindependent.com/?p=83760 GUANTANAMO BAY — The only time the courtroom has cleared in Omar Khadr’s pre-trial hearing so far was for a 20-minute stretch on Saturday morning while the defense screened a 2003 video of Canadian interrogators questioning Khadr. (While portions of the video have leaked to the media, the rules here More...

]]> GUANTANAMO BAY — The only time the courtroom has cleared in Omar Khadr’s pre-trial hearing so far was for a 20-minute stretch on Saturday morning while the defense screened a 2003 video of Canadian interrogators questioning Khadr. (While portions of the video have leaked to the media, the rules here favor erring on the side of classification, to say the least.) That caused reader JK to wonder: Do any other recordings of Khadr’s interrogations exist?

So I asked Barry Coburn, Khadr’s chief attorney. Coburn replied that the government has “told us that this is the only one.” If it turns out that there are any other recorded interrogations, then the government will have risked its case by misrepresenting a salient fact to the defense. (That is, unless a plea deal gets worked out first.)

]]> http://washingtonindependent.com/83760/how-many-recorded-khadr-interrogations-exist/feed 18 http://washingtonindependent.com/83509/confusion-reigns-at-gitmo-after-khadr-is-a-courtroom-no-show http://washingtonindependent.com/83509/confusion-reigns-at-gitmo-after-khadr-is-a-courtroom-no-show#comments Thu, 29 Apr 2010 16:15:53 +0000 Spencer Ackerman http://washingtonindependent.com/?p=83509 GUANTANAMO BAY — Welcome to the first courtroom logjam of what officials here call military commissions 4.2.

Omar Khadr’s pre-trial hearing this morning experienced an unexplained hour-long delay. Court officers filtered in at 10 a.m., without a certain important individual: Omar Khadr.

[Security1] Prosecution promptly called a Marine Corps captain, More...

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Omar Khadr and the Guantanamo Bay detention center (ZUMA, Spencer Ackerman)

GUANTANAMO BAY — Welcome to the first courtroom logjam of what officials here call military commissions 4.2.

Omar Khadr’s pre-trial hearing this morning experienced an unexplained hour-long delay. Court officers filtered in at 10 a.m., without a certain important individual: Omar Khadr.

[Security1] Prosecution promptly called a Marine Corps captain, Laura Bruzzese, to testify that she informed Khadr at 5:15 a.m. that there was a hearing scheduled for this morning. Khadr had a blanket over his head and complained of pain in his left eye, which has been sightless after an injury sustained during his 2002 capture in Afghanistan. She had him escorted to the infirmary, where he received an eyedrop for the pain, and in Camp Delta security officers attempted to load Khadr into a van to transport him to court. Part of that transfer involved putting what Bruzzese called “Eyes and Ears” on Khadr: blackout ski goggles and earmuffs to block out his senses while in transit.

Only Khadr refused. When Bruzzese asked him why he wouldn’t wear the Eyes and Ears — standard operating procedure for transiting a detainee, she testified — Khadr responded, “The only purpose is to humiliate me.” Under cross-examination, she testified that the van used for transport has no windows. Khadr wouldn’t, in other words, be able to understand where he was going even without the Eyes and Ears.

Khadr’s aggressive defense lawyer, Barry Coburn, contended that Khadr was not voluntarily absent from the hearing. “My understanding is that this has never been done before,” Coburn told Col. Patrick Parrish, the military judge, referring to the placement of the Eyes and Ears on a detainee in the van.

Parrish didn’t appear sympathetic. “This court is not going to second-guess the security requirements” placed by military officials here for detainee transfer, he said. Parrish denied Coburn’s requests to call witnesses to testify as to the involuntary nature of Khadr’s refusal to attend.

But then Parrish returned from a brief recess arising from an unrelated issue with new facts. Court reporters verified that the prior judge in Khadr’s case, Col. Peter Brownback, did not inform Khadr during his 2007 arraignment that a defendant has the right to attend every hearing in his case and that the proceedings will not stop if he declines to attend.

“I don’t feel comfortable proceeding until it is clear on the record that he has been so advised,” Parrish said, preparing to bang his gavel down for a recess. “The Manual says it is so fundamental.”

Before he did, Parrish urged defense counsel to visit Khadr at Camp Delta and “advise him of his fundamental rights.” If Khadr affirms to his lawyers that he understands and still doesn’t want to attend, Parrish said he’d accept that outcome. Alternatively, Parrish said he would “have him forcibly brought” to court to inform Khadr of his rights. (One of the most knowledgeable reporters here, Carol Rosenberg of the Miami Herald, said that judges don’t necessarily have the authority to order a detainee movement, as it’s been challenged in prior cases.)

So thanks to an obscure procedural snafu from 2007, Coburn and his partner, Kobie Flowers, are racing to Camp Echo, where detainees meet with their lawyers, to talk to Khadr. Neither would tell me in the confusion of the courtroom which option they’d choose. But they brought along Steve Xenakis, a mental health expert, to evaluate Khadr — most likely so that if Khadr declines to attend, they could proffer an expert statement about how voluntary he considers his absence.

“How quick can we get on the road, guys?” was the last thing I heard Coburn say before his team raced out the door.

The court reconvenes at 1 p.m. One potential problem: Camp Echo is outside the wire of Camp 4, the facility for “compliance” detainees, where Khadr resides. Conceivably, security officers could force Khadr to put on the Eyes and Ears, even to talk to his lawyers at Echo.

Video after the jump:

Attorney General Eric Holder testifies before the Senate Judiciary Committee on Wednesday. (James Berglie/ZUMApress.com)

Eric Holder stepped into the Dirksen building this morning an embattled man facing Republican members of the Senate Judiciary Committee fiercely critical of his desire to try Khalid Shaikh Mohammed and the other 9/11 conspirators in federal court. He left three hours later having defused some of his critics; conceding little; sticking up for his department’s role in counterterrorism; and placing back onto the table the prospect of a New York trial for the man known as KSM.

[Security1]For months, Holder and his Justice Department have been at the center of conservative ire at the Obama administration’s national security policies. Sen. Mitch McConnell (R-Ky.) called Holder out in a caustic February speech for playing an unduly influential role in counterterrorism, evidenced by Holder’s contentions that KSM and would-be Christmas bomber Umar Farouk Abdulmutallab should be tried in civilian courts. Sen. Jeff Sessions (R-Ala.) and Sen. Chuck Grassley (R-Iowa.), both Judiciary Committee members, have portrayed administration lawyers who defended Guantanamo detainees as possessing shadowy, un-American loyalties, and an ad building on their statements dubbed the lawyers “the al-Qaeda Seven.” Sen. Lindsey Graham (R-SC) has spent months working on a deal with the White House to trade GOP support for closing the Guantanamo Bay detention facility in exchange for overriding Holder and trying KSM before a military commission.

But Holder did not appear under fire during his first Senate testimony since the KSM controversy swelled. More often, it was his critics who backed down, conceded rhetorical territory or disagreed among themselves. “There’s been a lot of misinformation placed out there,” a confrontational Holder testified. “Without casting aspersions on anyone in this room, there’s been a lot of unnecessary politicization of national security issues that I don’t believe has benefited this country.”

Holder reminded the committee that civilian courts have convicted “close to 400″ individuals on terrorism charges, compared to three in military commissions — though Holder, adapting a phrase of Graham’s, said he would be “flexible, pragmatic and aggressive” in keeping both the commissions and the civilian courts as options for terrorism trials. That caused Sessions, who sought to portray Holder as an enemy of the commissions, to assert: “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases.” Holder replied that he had referred more terrorism cases — six, to be specific — to the military commissions than he had to the civilian courts. Similarly, when Sessions attempted to get Holder to say he’d favor reading Miranda rights to Osama bin Laden, Holder answered that there would be no need, since the government has more than enough information at present to convict bin Laden of terrorism crimes.

“I acknowledge that’s possible,” Sessions said.

That set the tone for Republican parrying with Holder. Grassley said he never intended “to call into question the integrity of any employee of the department” when requesting the names of department lawyers who represented Guantanamo detainees. Holder called the “al-Qaeda Seven” ad “reprehensible, and said that he would not participate in an effort to “tarnish the patriotism” of attorneys who “did what John Adams did” by defending hated clients. Grassley did not press the issue.

Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn’t “reject all [civilian] courts” for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were “not feasible to transfer [and] too dangerous to prosecute,” the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges. Notably, while Sessions contended that military commissions could better protect classified information than civilian trials, Graham — as of February, a leading proponent of that view — did not. It was easy to forget that Graham and Holder have spent months on either side of the issue of whether Khalid Sheikh Mohammed deserves a civilian trial.

On that issue — one in which both civil libertarians and conservatives have awaited Holder’s testimony to see if he would accept a military commission — Holder did not give any ground. “No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried,” Holder said, predicting a decision would not be made for “a number of weeks.” Pointedly, he added that “New York is not off the table” as a possible location for a trial, even though many New York politicians have objected to the trial and called for it to be moved — objections that in January raised the prospect of scuttling civilian trials for the 9/11 conspirators altogether. When Sen. Chuck Schumer (D-NY) urged Holder not to hold the trial in New York, Holder said the Obama administration would “take into consideration, obviously, the expressions of the political leadership” in the state but indicated those objections aren’t decisive, adding that it would also consider “what we are able to glean from the population” about support for the trial.

Holder’s steadfastness on the trial won him plaudits from civil libertarians. “I was glad to see Holder standing strong against the Republicans trying to beat the administration over the head with closing Guantánamo and using civilian trials,” Vince Warren, the executive director of the Center for Constitutional Rights, said in a statement. “If the U.S. is ever going to regain credibility in the world, the administration can’t let itself be bullied by fear mongers with their eyes on midterm elections rather than the law.”

But Holder’s embrace of military commissions and indefinite detention without charge cast a pallor on their enthusiasm. “I’m not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him,” said ret. Air Force Col. Morris Davis, the former chief prosecutor of the military commissions at Guantanamo Bay, in an email. “On the other hand, what I’ve seen on the national security front — basically adopting the same Bush-Cheney policies candidate Obama was firmly against — has been disappointing. I used to get perturbed when the ‘flip-flop’ accusation got thrown around, but it’s hard to argue that the label doesn’t fit the administration’s waffling view that military commissions are bad, no they’re good, no they’re bad again, oh wait maybe they’re good after all approach.”

Democrats on the committee rallied to Holder’s defense. “I’ve come to the conclusion that some of the attacks are to diminish you, and you should remain strong,” said Sen. Dianne Feinstein (D-Calif.).

Sen. Sheldon Whitehouse (D-RI), a former Rhode Island attorney general and federal prosecutor, tacitly compared Holder’s critics to a mob, a resonant image after The New Yorker recently reported that a January New York rally of conservatives against the KSM trial featured someone yelling, “Lynch Holder!”

“The emblems of American justice,” Whitehouse said, are “the blindfold and the balance, and not the torch and the pitchfork.”

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.”

Update: Alas, The New York Times reports that initial accounts of Gadahn’s arrest are incorrect, and the al-Qaeda figure the Pakistanis apprehended was ” Abu Yahya Mujahdeen al-Adam, who was described as having been born in Pennsylvania.” So. Will he be handed to the U.S. at all; and if so, what will be his legal fate?

Umar Farouk Abdulmutallab (U.S. Marshall's Office/ZUMA Press)

The Obama administration’s decision to try the Nigerian man suspected of attempting to blow up a Northwest Airlines flight on Christmas as an ordinary civilian criminal rather than as an “unprivileged enemy belligerent” in a military commission, as the 9/11 hijackers initially were, highlights the inconsistent approach taken by both the current and previous administrations, civil libertarians and defense lawyers say.

The Justice Department appears to have immediately treated the case of Umar Farouk Abdulmutallab, a 23-year-old Nigerian who claims he trained in Yemen with al-Qaeda, in the way it has long treated suspected terrorism: as a criminal act to be prosecuted in a civilian federal court.

[Law1] Arrested on Friday, Abdulmutallab was charged the next day, while being treated for burns in a hospital room in Ann Arbor, Michigan. He was charged with attempting to blow up Northwest Flight 253, which left from Amsterdam and was headed for Detroit.

Asked why the Department of Justice treated Abdulmutallab as a civilian rather than a suspected belligerent, DOJ spokesman Dean Boyd said: “At this time, we have no comment on the ongoing investigation or any prosecutorial deliberations — beyond the public charging documents that have been filed in the case.” The criminal complaint is here.

Defense lawyers who represent Guantanamo detainees who have not been treated as civilians applauded the Obama administration’s move, but noted the lack of a coherent rationale for continuing to treat other alleged terrorist plots as acts of war.

“There is something striking about fact that they treated the 9/11 attacks as an act of war but treat somebody who’s trying to blow up a plane as an ordinary criminal,” said David Remes, legal director of Appeal for Justice who represents almost a dozen Yemeni men still detained at Guantanamo Bay. “What is the basis of the distinction?”

Jonathan Hafetz, an attorney with the National Security Project of the American Civil Liberties Union similarly called it “a positive step that the Obama is handling this case through the criminal justice system which has demonstrated time and again that it is fully capable of prosecuting terrorism without sacrificing constitutional rights or values.”

He added in an e-mail that it is “unfortunate that the Obama administration is not applying this strategy across the board and instead continuing to detain individuals at Guantanamo without trial and outside the criminal justice system.”

This case was probably easier to send to federal court than some others because it does not involve a defendant who’s been detained for years without charge or tortured or otherwise abused by U.S. authorities, as have some detainees held at Guantanamo Bay. Those factors could all complicate a subsequent prosecution in federal court. By turning Abdulmutallab over to the FBI immediately, the administration could ensure that lawful procedures were followed and the evidence collected would more likely be admissible in a subsequent civilian trial.

That’s not the distinction the Obama administration has relied upon to justify the use of military commissions, however, and many critics have claimed that the administration has still failed to offer a coherent explanation for its choice of courts for different cases.

The Bush administration similarly chose different fora for different trials, often with little or not explanation. Richard Reid, for example, the so-called “shoe bomber” who tried to blow up an American Airlines plane shortly before Christmas in 2001, was, like Abdulmutallab, treated as an ordinary criminal and tried and convicted in federal court. In fact, the Bush administration tried more than 120 international terrorism cases in federal court after the 9/11 attacks. Still, both administrations have both treated some terror suspects with alleged links to al-Qaeda as war criminals to be tried in military commissions instead.

When Attorney General Eric Holder announced in November he was transferring the 9/11 suspects to federal court for trial, he also announced that four other high-level detainees would be tried by military commission. They include Abd al-Rahim al-Nashiri, the suspected USS Cole bomber, and others who allegedly attacked military targets. Holder at the time attempted to distinguish the cases on that ground, although many critics, including former Justice Department officials, said that distinction didn’t hold up.

Abdulmutallab’s claimed connection to al Qaeda suggests that his alleged attempt to blow up a plane could be treated as an act of war, and he could be tried as a war criminal as well. Similarly, the alleged USS Cole bomber and others charged as war criminals could easily be tried as alleged murderers in federal court.

In fact, as even Justice Department official David Kris has acknowledged, the crimes of conspiracy and providing material support for terrorism have traditionally been treated as federal civilian crimes, not as war crimes. That could complicate current attempts to try al Qaeda suspects for those crimes in the newly-reconstituted military commissions.

The hope of a speedy and successful prosecution may be the reason the Justice Department chose to prosecute this latest case in the civilian system, where it’s had a long record of success, both before and since September 11, 2001. Almost 200 terror suspects have been convicted in civilian federal courts since the 9/11 attacks; only three have been convicted in military commissions.

The alternative, say many legal experts, would have been to risk procedural delays, appeals and the reversal of any conviction in the new and untested military commissions.