November 15, 2009

Holder Announces that Guantanamo Detainees Will Stand Trial; Conservatives Go Apesh*t

Attorney General Eric Holder has announced that Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be tried in New York federal courts and not, as many conservatives had hoped, in military tribunals. Needless to say, this is good news for those who champion due process. As Human Rights Watch states, “Unlike the deeply flawed military commission proceedings, the federal civilian courts can give the defendants a fair and credible trial.”

Predictably, many on the right have reacted to this decision with the sense of alarm you’d expect from Chicken Little. Fox New reports:

Former federal prosecutor Andrew McCarthy [not to be confused with the St. Elmo’s Fire hunk]…said public trials will provide a “banquet of intelligence information” for the vast Al Qaeda network, especially operatives in Afghanistan.

“It’s a massively stupid decision when we’re actually at war with them,” McCarthy said in an interview with “We have to give them all kinds of information about our methods of intelligence that can only make them more efficient at killing us.”

Now such fears would perhaps be warranted if it weren’t for the Classified Information Procedures Act (CIPA). Passed by Congress in 1980, CIPA provides different ways in which the government can prevent classified information from being disclosed in a trial—for example, by substituting classified documents with redacted versions.

A 2008 Human Rights First report shows [.pdf] that CIPA has a successful track record (from the perspective of prosecutors, anyway):

For example, in the [1998 East African] Embassy Bombings case, the government offered the testimony of L’Houssaine Kherchtou, a former al Qaeda member…Prior to Kherchtou becoming a cooperating witness, he had been questioned by a foreign intelligence service for five days concerning his knowledge of al Qaeda. That questioning was taped, provided to the United States, and contained information relevant to the case, but the foreign intelligence service insisted that its involvement not be disclosed. “CIPA effectively resolved the issue: in discovery, a transcript of the debriefing was provided to defense counsel with references to the foreign intelligence service blacked out; at trial, defense counsel’s questioning of Kherchtou on the witness stand was monitored to ensure that the foreign intelligence service was not identified” [Turner & Schulhofer, The Secrecy Problem in Terrorism Trials]. It is our understanding that foreign intelligence agencies have become more willing to share information with the United States over time, as CIPA has proved to be effective in a number of cases. Even in cases where CIPA’s procedures have not been involved, Courts have permitted the government to maintain the secrecy of sensitive law-enforcement information. For example, in United States v. al-Moayad, Judge Sterling Johnson granted motions in limine to preclude defense cross-examination of German law-enforcement witnesses on sensitive, technical aspects of electronic surveillance that had been employed in Germany.

According to one of the prosecutors from the Embassy Bombings case:

When you see how much classified information was involved in that case, and when you see that there weren’t any leaks, you get pretty darn confident that the federal courts are capable of handling these prosecutions. I don’t think people realize how well our system can work in protecting classified information.

Now surely Andrew McCarthy (the attorney, not the actor) must know about CIPA. Therefore, unless we assume that his fearmongering is politically motivated, it’s difficult to understand why he would make such obviously ridiculous claims.

Several Republicans in Congress have echoed McCarthy’s warning and added some sky-is-falling forecasts of their own. Senate Minority Leader Mitch McConnell, for instance, claims that “our cities will face enormous security problems; and our communities will be potential targets for attack.”

What McConnell fails to mention is that the US has already prosecuted many terrorists, including al Qaeda members, in civilian court, all without incident (h/t Human Rights First [.pdf]). The real threat to American security lies, not in giving terror suspects fair trials, but in continuing to deprive them of justice. As the New York Times warned in a November 2001 editorial:

Using secretive military tribunals would ultimately undermine American interests in the Islamic world by casting doubt on the credibility of a verdict against Osama bin Laden and his aides. No amount of spinning by Mr. Bush’s public relations team could overcome the impression that the verdict had been dictated before the trial began. Reliance on tribunals would also signal a lack of confidence in the case against the terrorists and in the nation’s democratic institutions [h/t Glenn Greenwald].

And sure enough, the Bush administration’s deprivation of human rights radicalized many in the Islamic world. In 2006, Air Force interrogator Matthew Alexander reported that, more than anything else, foreign fighters were coming to fight American troops in Iraq because of “the abuses carried out at Abu Ghraib and Guantanamo.” General Counsel of the Navy Alberto Mora reached the same conclusion in 2008. More recently, the Center for Strategic & International Studies concluded that “the United States has been damaged by Guantánamo beyond any immediate security benefits. Our enemies have achieved a propaganda windfall that enables recruitment to violence, while our friends have found it more difficult to cooperate with us.”

By announcing that it would close Guantanamo Bay, the Obama administration took an important step in restoring America’s image in the Muslim world and thus enhancing American security. By announcing that Khalid Sheikh Mohammed and these four other Guantanamo detainees will be given fair, public trials, the administration has taken another important step. Of course, more—much more—still needs to be done, but these steps are significant nonetheless.

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