The extreme secrecy of the federal courts

Judges are not only permitted, but required, to conceal anything the government declares to be secret.

Published November 23, 2009 11:24AM (EST)

(updated below)

Once conservatives became embarrassed by their cowardly warnings that we would all be killed if we held a 9/11 trial in New York, they switched to a new argument:  trials in a real court would lead to the disclosure of classified information that would help the Terrorists.  In advancing this claim, they relied on the always-unhinged rantings of National Review's Andy McCarthy -- who has also suggested that Bill Ayers was the real author of Barack Obama's "Dreams from my Father"; attacked his own editors for pointing out the falsehoods of Sarah Palin's "death panel" claims, which McCarthy insisted were true; defended the Birther movement and dissented from NR's editorial rejection of it; and was excoriated by Rich Lowry for claiming that Obama "rather likes tyrants and dislikes America."  This person -- someone who is often too fringe, hysterical and delusional even for National Review -- is the "legal expert" on which the Right is relying to claim that real trials will jeopardize classified information.

To see how false this claim is, all anyone ever had to do was look at the Classified Information Procedures Act, a short and crystal clear 1980 law that not only permits, but requires, federal courts to undertake extreme measures to ensure the concealment of classified information, even including concealment from the defendant himself.  Section 3 provides:  "Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States."  Section 9 required the Chief Justice of the Supreme Court to consult with the Attorney General and Defense Secretary to develop rules to carry out the Act's requirements, and the resulting guidelines provide for draconian measures so extreme that it's hard to believe they can exist in a judicial system that it supposed to be open and transparent.

To see how severe these secrecy measures are, consider what is currently being done in the criminal case of Ahmed Khalfan Ghailani, the first accused Terrorists sent by the Obama administration to New York to stand trial after being interrogated and tortured for years in CIA black sites and at Guantanamo with no charges:

To ensure that secrets do not leak, Judge Kaplan has imposed a protective order on all classified information, which may be reviewed by the defense lawyers only in a special "secure area," a room whose location has not been disclosed.

The order covers all materials that might "reveal the foreign countries in which" Mr. Ghailani was held from 2004 to 2006  -- the period when he was in the secret jails -- and the names and even physical descriptions of any officer responsible for his detention or interrogation, the order says.

It also covers information about "enhanced interrogation techniques that were applied" to Mr. Ghailani, "including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques."

The defense lawyers, who had to obtain security clearance, cannot disclose the information to Mr. Ghailani without permission of the court or the government. Any motions they write based on the material must be prepared in the special room, and nothing may be filed publicly until it is reviewed by the government.

So, last Monday, when Mr. Ghailani’s lawyers filed a motion seeking dismissal of the charges because of "the unnecessary delay in bringing the defendant to trial," they included only a few mostly blank cover sheets.

The rest of the motion, which presumably offers rich details about Mr. Ghailani’s time in detention, remains secret, and a censored version will be made public only after it is cleared by the government.

Does that sound like a judicial process incapable of concealing secrets, or does it sound more like a Star Chamber where the justice system operates in the dark, even to shield government torture and illegal prisons from disclosure?  Many federal judges -- particularly in criminal cases -- are notorious for being highly sympathetic to the government.  That's even more true in a case involving one of the most hated criminal defendants ever to be tried in an American court, sitting a very short distance from the site where he is alleged to have killed 3,000 people in a terrorist attack.  And note that the law permits the judge no discretion:  if the Government claims something is classified, then "the court shall issue an order to protect against the disclosure of any classified information."  With some exceptions, ever since the "War on Terror" began, nobody has safeguarded government secrets as dutifully and subserviently as federal judges -- even when those secrets involve allegations of war crimes and other serious felonies.  That's what DOJ officials mean when they keep praising Southern District of New York judges for their supreme competence and expertise in handling terrorism cases.  Federal courts in general love to keep what is supposed to be their open proceedings a secret, but that instinct is magnified exponentially in national security and terrorism cases.

Even during the Bush years, numerous defendants accused of terrorist acts were tried and convicted in federal courts -- John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla.  Those spewing the latest right-wing scare tactic (Osama bin Laden will learn everything if we have trials!) cannot point to a single piece of classified information that was disclosed as a result of any of these trials.  If that were a legitimate fear, wouldn't they be able to?  Like most American institutions, our federal court system is empowered to shield from public disclosure anything the government claims is secret. Just look at the extreme measures invoked in the Ghailani case to see how true that is.


UPDATE:  As indicated, nobody -- including the right-wing fear-mongers -- can claim that any of the numerous terrorist trials conducted over the last ten years resulted in the release of any classified or other harmful information.  Standing alone, that fact illustrates how baseless is this fear; if "disclosure of sensitive information" were a real risk, wouldn't they be able to point to instances where that happened during any of the numerous Bush-era terrorist trials?

The sole example cited by the Right is the 1995 trial of accused World Trade Center bomber Sheikh Omar Abdel Rahman.  Both Andrew McCarthy, who was one of the prosecutors in that case, and former Bush Attorney General Michael Mukasey, who was the judge presiding over the trial, have made the claim that the Rahman trial resulted in the disclosure of secret information that Osama bin Laden somehow used to his benefit. 

Even leaving to the side the fact that these two individuals are among the most extreme right-wing ideologues who always insist that we must abandon our normal rules of justice lest we get slaughtered by the Terrorists, one of two things is true regarding their claim about that trial:  either (1) McCarthy and/or Mukasey failed to use the protections of CIPA to prevent the disclosure of classified information, which means the disclosures were the result of their ineptitude or disregard for the law, not a natural by-product of terrorist trials; or (2) the released information was not "classified," which -- given how the U.S. Government classifies virtually everything it can find -- renders highly dubious their fear-mongering claim that Osama benefited from non-classified information released at the 1995 trial.  Adam Serwer elaborates on this latter point here.

By Glenn Greenwald

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