Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
My colleague Spencer Ackerman has an important article at the Washington Independent pointing out the urban myth behind opposition to civilian trials for terror detainees. Specifically, the argument that military tribunals allow the government to protect classified information better than civilian trials. This argument is false, Ackerman explains, because the Military Commissions Act mandates that those tribunals use the same procedures used by civilian courts to protect classified evidence.
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.
"Any concern about the treatment of classified information in federal court is a solution in search of a problem," said Joshua Dratel, one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts, in the post-9/11 civilian courts and in every version of the military commissions. "There simply has not been a problem in handling classified information in civilian federal court trials."
So much for that argument.
Politics
Comments
It was a stupid argument even before the Military Commissions Act. Cases involving classified information are heard in civilian courts all the time.
Posted by: WSfield | March 16, 2010 9:45 AM
With all the arguments made against using civilian courts, it seems to me that people on the right must think that civilian courts are somehow second-rate hackjobs that aren't fit for truly protecting the rights of Americans. Somehow (according to my reading of their logic), military tribunals are actually better and more American than civilian courts.
So, since the military system is much more capable of justice than the civilian one, why not mandate a military government, and thus get rid of civilian courts and use military tribunals for a judicial system?
I'm sorry, but whenever I think about this sort of thing, it just makes me think that they want us to become akin to Pinochet's Chile or the Kims' North Korea, because somehow more militarism is more "American."
Posted by: mercurianferret | March 16, 2010 11:11 AM
mercurialferret, #2: ...it seems to me that people on the right must think that civilian courts are somehow second-rate hackjobs....
And yet they think that civilian courts are perfectly capable of meeting out the death sentence.
Posted by: Chiroptera | March 16, 2010 11:14 AM