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Would Military Commissions Handle Anything About Terrorism Cases Any Better Than Courts?

Adam Serwer reads Andy McCarthy’s comment in my piece today about information of any kind being unacceptably jeopardized by the “day to day” interactions of civilian court procedures and observes:

I’m here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified — possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won’t begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that “as a practical matter, there’s very little difference” between the process for dealing with classified information in military commissions and civilian court.

That “day-to-day” process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It’s also happening twice, once prior to a hearing that will determine whether Mohammed is an “unprivileged enemy belligerent,” and then again as the evidence is reviewed prior to his likely trial.

Meanwhile, it’s not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military’s “Frequent Flier” sleep deprivation program was disclosed during Mohammed Jawad‘s military commission, which seems to me a much more significant disclosure than bin Laden finding out we’re after him several years after he’s issued fatwas calling for Muslims to fight the U.S.

In fairness, McCarthy told me he doesn’t carry any particular brief for military commissions. He favors the establishment of special national security courts for terrorism cases, an idea also favored by Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard — and, for that matter, by Sen. Lindsey Graham (R-S.C.) — but rejected by the Obama administration. (So far.)

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