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


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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