Dispatches from the Culture Wars

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.

He then quotes the procedures in place in the case of Ahmed Khalfan Ghailani, on trial now in New York after spending years being tortured at black sites run by the CIA, cited in the New York Times:

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.

McCarthy and Mukasey both cite the example of the trial of Sheikh Omar Abdel Rahman in 1995 as an example, but as Adam Serwer shows at The American Prospect, the sum total of the "secret" information that was released, even by Mukasey's own admission (and Mukasey was the judge in that case) was the fact that our government was aware of Osama Bin Laden and knew that he was a co-conspirator with Rahman. That certainly would not have been new information to Bin Laden:

In fact, bin Laden had been calling for "jihad" against the U.S. since 1992, so the idea that he discovered that we were "aware" of him in 1995 is absurd. The 9/11 Commission Report notes that he had been calling for holy war against the U.S. for at least three years by that point. If OBL was "relatively obscure," it wasn't because he was trying to keep a low profile.

Quite so.