November 18, 2009

KSM to Stand Trial, Part 2

But first…

It looks like just about everyone in the blogosphere is talking about Newsweek and Sarah Palin’s legs. For those of you who haven’t yet heard, the latest issue of Newsweek features a picture of Sarah Palin striking a rather sexy pose in a jogging outfit.

So conservatives are having a hissy fit. Robert Stacy McCain complains that Newsweek is attempting to “diminish and belittle Palin, to portray her as a cheesecake bimbo, the political equivalent of Lindsay Lohan.” David Brody claims that this is yet another example of the mainstream media’s left-winged bias.

I, on the other hand, don’t really give a f*ck.

I really don’t. I mean, I don’t know if these bloggers have noticed, but there’s actually a lot of important stuff going on in the world. Wars, rumors of wars. And yet all these nitwits can do is whine that the big bad media has once again victimized Shit-for-Brains Palin.

So, needless to say, I felt a sense of relief upon seeing that someone had blogged about something that actually matters. His name is Andy D., and, although I don’t agree with what he’s written, I can’t help but respect him for not writing about Sarah Palin.

So Andy D., this one’s for you.

And now for the main event…

In a post titled “Terrorists in Civilian Court: What Does History Say?” Andy D. basically reiterates GOP talking points and argues that the Obama administration should not try Khalid Sheikh Mohhamed or any other 9/11 suspect in federal court. Andy cites three cases that supposedly illustrate that such trials run a high risk of compromising sensitive government information.

Case #1: The Blind Sheikh

Andy writes that the Blind Sheikh’s trial is “believed to have provided valuable intelligence for Al-Queda.” He goes on to quote Michael Mukasey, who presided over the proceedings. In the trial, Mukasey has written,

the government was required to disclose, as it is routinely in conspiracy cases, the identity of all known co-conspirators, regardless of whether they are charged as defendants. One of those co-conspirators, relatively obscure in 1995, was Osama bin Laden. It was later learned that soon after the government's disclosure the list of unindicted co-conspirators had made its way to bin Laden in Khartoum, Sudan, where he then resided. He was able to learn not only that the government was aware of him, but also who else the government was aware of.

While all this might be true, Human Rights First notes [.pdf] that the government “did not seek to invoke CIPA [Classified Information Protection Act] or other protections regarding the names on the list of unindicted coconspirators.” As I wrote on Sunday, the whole point of CIPA is to enable the government to prevent classified information from being disclosed in such a trial. So, in other words, had it chosen to, the government could have prevented this information from being released.

Case #2: Zacarias Moussaoui

Regarding the “twentieth hijacker,” Andy writes:

Since Moussaoui represented himself, the prosecution had to turn over their case to the “defendants lawyer” [sic] under discovery. According to CNBC News, the government admitted they turned over classified documents to Moussaoui that he shouldn’t have had access too [sic]. This is important because KSM has decided to represent himself in the upcoming New York trials.

I haven’t been able to find Andy’s source here (he doesn’t provide a link). But if the government in fact gave Moussaoui access to confidential information, then it should be noted that they weren’t required to. Court records show [.pdf] that Moussaoui’s request to be given classified information was denied:

The district court denied the pro se request for access to classified information, pointing to Moussaoui’s “repeated prayers for the destruction of the United States and the American people, admission to being a member of al Qaeda, and pledged allegiance to Osama Bin Laden” as “strong evidence that the national security could be threatened if the defendant had access to classified information.”

And Andy’s implication that Khalid Sheikh Mohammed would be given confidential information if he chose to defend himself is factually inaccurate. As legal scholar James J. Benjamin Jr. recently told the New York Law Journal, under CIPA, “It is pretty well established that the [pro se] defendant [i.e., defendant who represents himself] does not have the right to see any classified evidence in discovery.”

Case #3: Ramzi Yousef

Here, Andy again quotes Mukasey, who wrote in a 2007 Wall Street Journal op-ed:

Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.

Human Rights First notes that this allegation cannot be substantiated by publicly available information. But even if such information were in fact compromised, it should be noted that, just as in the Blind Sheikh case, the government did not invoke CIPA.


As Human Rights First states [.pdf], “The Classified Information Procedures Act (CIPA), although subject to being improved, is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.”

But obviously the mere existence of CIPA will not guarantee that confidential information will not be compromised. As we just saw, in order for CIPA to work, government prosecutors need to use it.


KLo said...

So does Robert Stacy McCain think that Newsweek dressed Sarah Palin???????? Unbelievable!!!!!!

This is a really interesting and thought-provoking blog : ) I'm glad I came across it!

Don Emmerich Jr. said...

Yeah, I thought the exact same thing. Sarah Palin's the one who's made herself ridiculous. She's the one who says all those crazy things; she's the one who posed in those short shorts.

And thanks so much for your kind words. I look forward to checking out your blogs, as well!