Another Anti-Federal Court Argument Crumbles

By Daphne Eviatar, Senior Associate, Law & Security

Andrew McCarthy, the former prosecutor and National Review Online columnist, has lately been highly critical of trying suspected terrorists in traditional federal courts. (In the past, he’s been critical of military commissions, too, as being too soft on terrorists.) The criticism of civilian trials is partly because, he and others claim, federal courts risk releasing classified information to terrorists. That myth has just been thoroughly debunked.

The poster case for the critics’ claim is the 1995 federal court trial of Egyptian-born Omar Abdul Rahmand Sheikh” — commonly known as the “blind sheikh” — who was successfully prosecuted for conspiring to bomb the World Trade Center in 1993. In that case, the government’s list of unindicted co-conspirators was reportedly inadvertently leaked during the trial and made its way to Osama bin Laden.

Now, the “blind sheik” trial has become one of the leading red flags raised by critics of the Obama administration’s plans to try terrorist suspects in federal courts. Critics claim it’s a prime example of how civilian court trials help terrorists obtain classified information to support their cause.

But the list in question, it turns out, could have been protected, as my former colleague Spencer Ackerman explains in The Washington Independent. The prosecutor on the case, Andrew McCarthy, could have invoked the Classified Information Procedures Act, or CIPA, to protect that list from public disclosure. He did not.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” McCarthy told Ackerman. “I suppose we could’ve done that.”

Yes, he could have, and that would have prevented the leak.

In fact, in a review of all major terrorism cases involving Islamic extremist or jihadist groups produced by Human Rights First, former prosecutors with experience prosecuting terrorism cases concluded that CIPA “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 it does require that the prosecutor pay attention to the evidence in the case and determine whether it should be protected. Civilian prosecutors do that all the time. Either McCarthy was not paying attention, or he decided that the list of unindicted co-conspirators wasn’t particularly sensitive or important and did not merit special protection. Given that the list was not classified, McCarthy may well have concluded that its disclosure would not be harmful. Either way, his role in the “Blind Sheikh” case destroys the argument that McCarthy himself has been expounding for some time now — that prosecuting terrorism cases in civilian federal courts risks releasing sensitive national security intelligence to dangerous terrorists.

Turns out that’s only true if the prosecutor makes no effort to protect that intelligence.

It’s worth noting that the military commissions’ rules for the handling of classified information are modeled on and virtually identical to the rules used in civilian federal courts. And the military prosecutor still has to invoke the rule for it to effectively protect any evidence.


Published on April 9, 2010


Seeking asylum?

If you do not already have legal representation, cannot afford an attorney, and need help with a claim for asylum or other protection-based form of immigration status, we can help.