President Obama clearly didn’t do his homework before ordering the suspension of military tribunals to try terrorist suspects. We have learned that even his own legal counsel admitted that Mr. Obama erred in discussing details about terrorism with families of victims last week, and that the administration was ignorant of a key point that terrorists exploit to their advantage. In his rush to fulfill a campaign promise to his more fervid anti-war supporters, the president’s legal oversights risk the disclosure of some highly classified information to terrorists.
Debra Burlingame, sister of Charles Burlingame III, the pilot of American Airlines Flight 77 that was flown into the Pentagon on 9/11, was present at last Friday’s White House meeting of families of terrorism victims. Her impression was that President Obama was saying the right words in general, but when it came to specifics he was uncertain, uninformed, and sometimes just plain mistaken. Ms. Burlingame is an attorney who has followed closely the legal aspects of the terrorism cases, and her detailed, probing questions were met with stammers, stares, and statements that betrayed an understanding of the law that was, she said, “flat out wrong.”
Case in point: the president’s knowledge of the role of the Classified Information Procedures Act or CIPA. This law governs the way in which classified information is used in trials. The Sixth Amendment guarantees defendants the right to confront their accusers and the evidence against them, but the government has an important interest in cases such as these in keeping sources and methods secret. Under CIPA rules, in cases where classified information is used, the government has the option of sharing the information with the defendant, or not using it.
The Bush administration sought to avoid this potential national security threat by resorting to other procedures in which 6th Amendment issues did not arise. But President Obama believes that the model for terrorism cases is the prosecution of the 1993 World Trade Center bombers. Of course a number of those plotters escaped justice (some were found later hiding in Saddam’s Iraq, but that’s another story). More important, because of the openness of that process, al Qaeda learned a great deal about how to do a much better job next time - and even the classified information from that trial was in Osama bin Laden’s hands within weeks.
The terrorists have learned a great deal about conducting legal guerrilla war, using rules like CIPA to their advantage. Notice that more and more terrorists are dismissing their appointed lawyers and representing themselves. This gives them direct access to the classified documents that will be used in evidence against them. In this way they can learn about U.S. intelligence sources and methods - how they were targeted, what information was collected, and who may have been the traitors in their midst. Even if the names of sources are omitted, for example someone who was present at a key planning meeting, the terrorist defendant will know enough about the circumstances to be able to narrow it down. After all, the terrorist is familiar with every aspect of the events; he knows much more about them than the intelligence community.
The alternative to handing over the secrets is for the government to not use the evidence in question. That creates the incongruous situation in which the defense wants to maximize the amount of evidence that implicates them, and the prosecution wants to minimize it. (Our legal system was not designed to accommodate defendants who welcome being put to death.) According to Ms. Burlingame, Obama’s answer to this conundrum was “there is no reason we have to give [the terrorists] everything.” Evidently the former editor of the Harvard Law Review seems to think that one of his powers as president is personally to pick and choose which constitutional rights apply to terror defendants and which do not. That’s the very thing they were criticizing President Bush for.
White House Counsel Greg Craig, often seen whispering in the president’s ear during question periods, admitted later to Ms. Burlingame that the chief executive was getting the facts of the law wrong during the discussion with the families. Craig asked her if CIPA covers a case in which terrorists defend themselves, noting that “this is something we hadn’t contemplated.” If nothing else, this admission of ignorance is more evidence that the decision to rush ahead with closing Guantanamo and shutting down the military tribunals was ill-conceived, poorly planned, and may ultimately be injurious to our national security. The president may talk a good game about “swift, certain justice,” but it is becoming clear that justice will not be swift, is highly uncertain, and in the end may not even be just.