{"id":521548,"date":"2010-04-09T06:00:51","date_gmt":"2010-04-09T10:00:51","guid":{"rendered":"http:\/\/washingtonindependent.com\/?p=81710"},"modified":"2010-04-09T06:00:51","modified_gmt":"2010-04-09T10:00:51","slug":"in-much-cited-precedent-for-911-trial-tools-for-protecting-information-went-unused","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/521548","title":{"rendered":"In Much-Cited Precedent for 9\/11 Trial, Tools for Protecting Information Went Unused"},"content":{"rendered":"<div id=\"attachment_81711\" class=\"wp-caption alignnone\" style=\"width: 490px\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-81711\" title=\"Andrew McCarthy\" src=\"http:\/\/washingtonindependent.com\/wp-content\/uploads\/2010\/04\/mccarthy-480x327.jpg\" alt=\"Andrew McCarthy\" width=\"480\" height=\"327\" \/><\/p>\n<p class=\"wp-caption-text\">Andrew McCarthy (YouTube: Hoover Institution)<\/p>\n<\/div>\n<p>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&#8217;s communications  director, Kevin Bishop, <a id=\"tqa5\" title=\"told The Washington Independent last month\" href=\"http:\/\/washingtonindependent.com\/78925\/urban-myth-behind-grahams-support-for-911-military-trials\">told The  Washington Independent last month<\/a> that &#8220;military justice and the  military framework &#8212; a military commission &#8212; would allow us to better  protect classified information.&#8221; In a recent address, Graham intoned  that &#8220;valuable intelligence was compromised&#8221; in a 15-year-old case, the  New York trial of the &#8220;Blind Sheikh,&#8221; 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.<\/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>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&#8217;s more, he concedes that he didn&#8217;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.<\/p>\n<p>&#8220;We did not  ask for CIPA protection on any of the discovery, including the  co-conspirator list,&#8221; 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. &#8220;I suppose we could&#8217;ve done that.&#8221; Still,  McCarthy, whom <a id=\"zpix\" title=\"a February New York Times profile\" href=\"http:\/\/www.nytimes.com\/2010\/02\/20\/nyregion\/20prosecutor.html\">a February New York  Times profile<\/a> identified as one of the most influential conservative  voices in the current debate over the propriety of trying terrorists in  civilian courts, added, &#8220;I think too much is made of the example of the  co-conspirator list.&#8221;<\/p>\n<p>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 &#8220;Blind Sheikh,&#8221; 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 &#8212; 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 &#8212; successfully  convicted Rahman in 1995, thereby obtaining the first big American  conviction against members of an Islamist terrorist conspiracy.<\/p>\n<p>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. &#8220;As underscored by al-Qaeda&#8217;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 &#8212; and we know they do so,&#8221; McCarthy writes in his  2008 memoir of his experience prosecuting the Blind Sheikh, &#8220;Willful  Blindness.&#8221;<\/p>\n<p>Graham magnified that contention in a <a id=\"pygx\" title=\"February radio address\" href=\"http:\/\/rncnyc2004.blogspot.com\/2010\/02\/senator-lindsey-graham-weekly.html\">February radio address<\/a> sponsored by the Republican Party, even going so far as to imply that  the disclosure paved the way for the 9\/11 attacks: &#8220;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.&#8221;<\/p>\n<p>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 &#8212; which would have placed additionally restrictive  rules on handling it. McCarthy said he believed Mukasey, the judge who  heard the case, issued a &#8220;general protective order&#8221; for information  shared with defense council for the trial&#8217;s discovery phase, but  conceded, &#8220;We didn&#8217;t go piece by piece of discovery to the court for a  protective order.&#8221; 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&#8217;s examination of the  court record. Mukasey, through a spokesman, declined to comment.<\/p>\n<p>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&#8217;s Office for the Southern District of New York, wrote of  the co-conspirator list, &#8220;Had the government sought a court order  restricting dissemination of the list, perhaps it would not have been  disseminated to Bin Laden.&#8221;<\/p>\n<p>Jim Benjamin, one of the authors of  the study &#8212; whom McCarthy praised for &#8220;going out of their way to be  fair and get[ting] the facts accurate&#8221; &#8212; clarified that he does not  consider McCarthy or anyone else prosecuting the Blind Sheikh to be  negligent. &#8220;Andy did a spectacular job on the Blind Sheikh prosecution  and throughout his career as a prosecutor in the Southern District,&#8221;  Benjamin, now with the law firm Akin Gump, said in an interivew. &#8220;I  don&#8217;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.&#8221;<\/p>\n<p>Asked  why he never invoked CIPA in the case, McCarthy replied, &#8220;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&#8217;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&#8217;t really care about nondisclosure orders.&#8221;<\/p>\n<p>But the  lack of a protective order or a CIPA invocation does beg the question  of whether it&#8217;s fair to indict the entire criminal justice system as  incapable of handling terrorism cases if prosecutors in a pre-9\/11 case  didn&#8217;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  &#8212; particularly information that doesn&#8217;t even rise to the level of  sensitive, let alone classified &#8212; a prospect that unnerves him when  considering terrorism cases.<\/p>\n<p>&#8220;The co-conspirator list is just a  single instance of a much broader problem in terrorism cases,&#8221; McCarthy  said. &#8220;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&#8217;t involve national security  situations when you&#8217;re dealing with a faction that you&#8217;re at war with.  At the time that our trial took place, the United States certainly  wasn&#8221;t in a state of war, even if the other side was. But I don&#8217;t think  there can be any question that the day-to-day dishing out of discovery  &#8212; we&#8217;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.&#8221;<\/p>\n<p>Benjamin, whose 2008 study of  terrorism trials examined hundreds of cases, responded that he was  unaware of &#8220;examples where that scenario has unfolded and there has been  a security breach as a result.&#8221; 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.<\/p>\n<p>&#8220;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,&#8221; Benjamin said. &#8220;When you  stack up this single incident against the scores of cases where CIPA has  been invoked and there haven&#8217;t been leaks, I think the better  conclusion to draw is the opposite one &#8212; that the civilian courts have  generally been able to handle terrorism cases effectively and without  jeopardizing national security.&#8221;<\/p>\n<p>That&#8217;s a conclusion fervently  embraced by Attorney General Eric Holder, who has been asked about the  co-conspirator list by members of Congress. &#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 told the Senate Judiciary Committee in  November. &#8220;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.&#8221;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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&#8217;s communications director, Kevin Bishop, told The [&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-521548","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/521548","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=521548"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/521548\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=521548"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=521548"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=521548"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}