Spencer Ackerman has a critical post about just how duplicitous Lindsey Graham is in his crusade to stop the 9/11 trials from going forward in federal courts. Graham has been working with Rahm Emanuel on this, promising that if he gets his way on no civilian trials, then he'll get Republicans to drop their opposition to closing Guantanamo.
On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.
There’s just one problem. Graham’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 — with significant input from Graham himself — 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’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.
Asked to specify Graham’s objection to trying KSM in civilian court, Kevin Bishop, Graham’s chief spokesman, said that the senator is concerned about the potential for releasing classified information in open court. “Military justice and the military framework — a military commission — would allow us to better protect classified information,” Bishop said. Graham made a version of that argument on February 13 in the Republican radio address, referencing a 1995 terrorism trial and asserting, “valuable intelligence was compromised.”
But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, 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’s fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane....
The ACLU’s Anders wondered whether the novelty of military commissions — especially as the legal rules under the commissions have changed three times since the Bush administration created them after 9/11 — might make them more likely avenues for inadvertent disclosure of classified information in a KSM trial. “Who is going to do a better job with applying the substantively difficult law protecting classified information,” Anders said, “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?”
[Joshua] Dratel [one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts] agreed, citing a case he argued at Guantanamo Bay in which a judge blurted out that something stated in court “probably” ought to have been classified. ” 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’ll fall off the edge of the earth,” he said. “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.” [emphasis mine]
Graham is purely playing politics on this, the more seemingly genteel side of the same game that Liz Cheney, Bill Kristol, and Chuck Grassley are playing with their attacks on the DOJ--undermining Holder and his Justice Department. Making this deal with Graham would be a disaster for the White House on many levels, not the least of which is that Graham isn't a position to fulfill the Guantanamo part of the bargain.