Mukasey Distorts Record to Argue for Restrictions on Habeas Corpus Rights in Terrorism Cases

Human Rights First Senior Associate Deborah Colson dissects some of Attorney General Michael Mukasey’s arguments in a speech he gave today calling on Congress to pass legislation governing federal courts’ consideration of habeas petitions by Guantanamo detainees.

[Mukasey] suggested that the rules for handling classified information must be modified because federal courts have already been involved in some national security leaks. This is what he said:

“In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators – a list that included Osama bin Laden. This was in 1994, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden’s hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike.”

But In Pursuit of Justice, a recent Human Rights First report studies the terrorism case Mukasey mentioned (the trial of Sheikh Omar Abdel Rahman) and finds that the government was at fault by failing to invoke lawful means for protecting the unindicted coconspirator list. The report concludes:

Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden. In fact, in later terrorism cases, such as the Embassy Bombings case, protective orders have been employed to restrict the dissemination of sensitive materials.

In Pursuit of Justice recognizes that the Classified Information Procedures Act (CIPA), which governs the protection of national security information in federal courts, is not foolproof. But, based on public record, the report finds no important security breaches in any terrorism case in which CIPA has been invoked.