{"id":415228,"date":"2010-03-11T06:00:40","date_gmt":"2010-03-11T11:00:40","guid":{"rendered":"http:\/\/washingtonindependent.com\/?p=78925"},"modified":"2010-03-11T06:00:40","modified_gmt":"2010-03-11T11:00:40","slug":"%e2%80%98urban-myth%e2%80%99-behind-graham%e2%80%99s-support-for-911-military-trials","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/415228","title":{"rendered":"\u2018Urban Myth\u2019 Behind Graham\u2019s Support for 9\/11 Military Trials"},"content":{"rendered":"<div id=\"attachment_78926\" class=\"wp-caption alignnone\" style=\"width: 490px\"><a href=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2010\/03\/graham.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-78926\" title=\"Lindsey Graham\" src=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2010\/03\/graham-480x343.jpg\" alt=\"Sen. Lindsey Graham (R-S.C.) (WDCpix)\" width=\"480\" height=\"343\" \/><\/a><\/p>\n<p class=\"wp-caption-text\">Sen. Lindsey Graham (R-S.C.) (WDCpix)<\/p>\n<\/div>\n<p>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 &#8220;weeks away&#8221; from any decision about whether to scrap a civilian  trial for the man known as KSM &#8212; which could give Graham what he wants.<\/p>\n<p><div id=\"attachment_2848\" class=\"wp-caption alignleft\" style=\"width: 140px\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-2848\" title=\"nationalsecurity\" src=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2008\/08\/nationalsecurity.jpg\" alt=\"Image by: Matt Mahurin\" width=\"130\" height=\"130\" \/><\/p>\n<p class=\"wp-caption-text\">Image by: Matt Mahurin<\/p>\n<\/div>\n<div class=\"floatButtons\">\n<div style=\"float: left; margin-right: 10px; margin-bottom: 10px;\"><script src=\"http:\/\/digg.com\/tools\/diggthis.js\" type=\"text\/javascript\"><\/script><\/div>\n<div style=\"float: left; margin-bottom: 10px;\"><script type=\"text\/javascript\"\n\tsrc=\"http:\/\/d.yimg.com\/ds\/badge2.js\"\n\tbadgetype=\"square\">\n\t<?php the_permalink(); ?><\/script><\/div>\n<div style=\"float: left; margin-right: 10px;\">\n\t<script type=\"text\/javascript\">\ntweetmeme_source = \"TWI_news\";\ntweetmeme_service = \"bit.ly\";\n<\/script> <script src=\"http:\/\/tweetmeme.com\/i\/scripts\/button.js\" type=\"text\/javascript\"><\/script>\n<\/div>\n<div style=\"float: left;\"><a name=\"fb_share\" type=\"box_count\" href=\"http:\/\/www.facebook.com\/sharer.php\">Share<\/a><script src=\"http:\/\/static.ak.fbcdn.net\/connect.php\/js\/FB.Share\" type=\"text\/javascript\"><\/script><\/div>\n<\/div>\n<p> There&#8217;s  just one problem. Graham&#8217;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 &#8212; with significant input from Graham himself &#8212; 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&#8217;s position was founded  on &#8220;one big urban myth&#8221; &#8212; though whether that will affect Obama&#8217;s  political calculation over the trial remains to be seen.<\/p>\n<p>Asked to  specify Graham&#8217;s objection to trying KSM in civilian court, Kevin  Bishop, Graham&#8217;s chief spokesman, said that the senator is concerned  about the potential for releasing classified information in open court.  &#8220;Military justice and the military framework &#8212; a military commission &#8212;  would allow us to better protect classified information,&#8221; Bishop said.  Graham made a version of that argument on February 13 in the Republican  radio address, referencing a 1995 terrorism trial and asserting,  &#8220;valuable intelligence was compromised.&#8221;<\/p>\n<p>But the military  framework for handling classified information is almost exactly the  civilian framework for handling it. <a href=\"http:\/\/www.defenselink.mil\/news\/2009%20MCA%20Pub%20%20Law%20111-84.pdf\">The  Military Commissions Act of 2009<\/a>, 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&#8217;s  fifth subchapter governing the &#8220;construction of provisions&#8221; for the  &#8220;protection of classified information,&#8221; the text says that &#8220;the judicial  construction of the Classified Information Procedures Act (18 U.S.C.  App.) shall be authoritative,&#8221; except in certain specific cases that  Justice Department officials said are legally arcane.<\/p>\n<p>&#8220;Any  concern about the treatment of classified information in federal court  is a solution in search of a problem,&#8221; 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. &#8220;There simply has not been a  problem in handling classified information in civilian federal court  trials.&#8221;<\/p>\n<p>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 &#8212; 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 &#8220;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,&#8221; making the two venues a distinction without a difference from  the perspective of protecting sensitive material. &#8220;We can protect  classified material during trial,&#8221; Holder said.<\/p>\n<p>Dean Boyd, the  spokesman for the Justice Department&#8217;s National Security Division,  underscored the point. &#8220;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,&#8221;  Boyd said. &#8220;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.&#8221;<\/p>\n<p>The  CIPA system was good enough for Graham during last&#8217;s year&#8217;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. &#8220;Madam President,&#8221; Levin said, &#8220;the amendment I now offer, along  with Senators Graham and McCain, would modify the procedures for the  handling of classified evidence by military commissions&#8230; It has the  support of the Justice Department and the Department of Defense.&#8221;<\/p>\n<p>Graham  has other reasons for supporting a military commission for Khalid  Shaikh Mohammed &#8212; &#8220;Khalid Shaikh Mohammed, if he&#8217;s not an enemy  combatant, who is?&#8221; Bishop said; the Obama administration <a href=\"http:\/\/www.washingtonpost.com\/wp-dyn\/content\/article\/2009\/03\/13\/AR2009031302371.html\">has  abandoned the &#8220;enemy combatant&#8221; designation<\/a> for suspected  terrorists &#8212; but Graham&#8217;s specific objection to the civilian trial  centers on a claimed distinction between civilian and military  procedures for handling classified information.<\/p>\n<p>During the 30  years CIPA has governed classified disclosures in civilian courts, &#8220;the  government is always in control of what gets released publicly,&#8221; said  Dratel. All officers of the court, from defense counsel to a judge&#8217;s  clerks, must hold security clearances to view classified information in  secure facilities. &#8220;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.&#8221; When judges permit defense  counsel like Dratel &#8212; never their clients &#8212; to view classified  information relevant to a case, &#8220;it doesn&#8217;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.&#8221;<\/p>\n<p>Any  piece of classified information defense counsel wishes to enter into  evidence must be approved by a judge. &#8220;If a judge agrees with me, then  the government has a choice,&#8221; Dratel continued. &#8220;It has the choice of  either declassifying the information or offering a substitution that  would satisfy due process &#8212; 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.&#8221; These procedures now form the basis for how military  commissions handle classified information as well.<\/p>\n<p>To underscore  Graham&#8217;s concerns, Bishop cited the 1995 case of Omar Abdul Rahman, the  &#8220;blind sheikh&#8221; successfully prosecuted for involvement in the conspiracy  to bomb the World Trade Center in 1993, in which the government&#8217;s list  of Rahman&#8217;s unindicted co-conspirators reportedly leaked out of the  courtroom and made its way to Osama bin Laden. &#8220;Our intelligence  services later learned this list made its way back to bin Laden tipping  him off about our surveillance,&#8221; Graham stated in his February radio  address arguing against a civilian trial for KSM. &#8220;A conviction was  obtained in that trial, but valuable intelligence was compromised. The  rest is history.&#8221;<\/p>\n<p>In 2008, however, a lengthy investigation into  the criminal justice system&#8217;s handling of terrorism cases sponsored by  Human Rights First determined that the list was never classified &#8212; and  that prosecutors on the case never even sought to &#8220;invoke CIPA or other  protections regarding the names on the list of unindicted  co-conspirators.&#8221; The report, written by two veterans of the U.S.  Attorney&#8217;s office for the Southern District of New York who did not work  on the case, continues, &#8220;Had the government sought a court order  restricting dissemination of the list, perhaps it would not have been  disseminated to Bin Laden.&#8221; One of the authors of the report, Richard  Zabel, is now the chief of the Criminal Division of the U.S. Attorney\u2019s  Office for the Southern District of New York.<\/p>\n<p>&#8220;If it had been  classified and only available to [security-]cleared counsel, it never  would have been circulated,&#8221; said Andrew Patel, one of the lawyers for  Rahman&#8217;s co-conspirators. &#8220;This is the archetype of the government  saying &#8216;we need additional tools&#8217; when they failed to use the tools they  had.&#8221;<\/p>\n<p>Indeed, Holder addressed the Rahman disclosure in a  November exchange with Sen. Orrin Hatch before the Senate Judiciary  Committee. &#8220;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,&#8221; Holder said.  &#8220;The provisions designed to protect sources and methods in the military  commissions are based on the CIPA Act that we use in [federal] courts.&#8221;<\/p>\n<p>The  ACLU&#8217;s Anders wondered whether the novelty of military commissions &#8212;  especially as the legal rules under the commissions have changed three  times since the Bush administration created them after 9\/11 &#8212; might  make them more likely avenues for inadvertent disclosure of classified  information in a KSM trial. &#8220;Who is going to do a better job with  applying the substantively difficult law protecting classified  information,&#8221; Anders said, &#8220;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?&#8221;<\/p>\n<p>Dratel agreed, citing a case he  argued at Guantanamo Bay in which a judge blurted out that something  stated in court &#8220;probably&#8221; ought to have been classified. &#8221; 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&#8217;ll fall off  the edge of the earth,&#8221; he said. &#8220;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.&#8221;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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 [&hellip;]<\/p>\n","protected":false},"author":4314,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-415228","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/415228","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4314"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=415228"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/415228\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=415228"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=415228"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=415228"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}