It is no secret that the Obama administration believes Khalid Sheikh Mohammed and the other 9/11 plotters should be given a civilian criminal trial in New York City, not a military commission in Guantanamo Bay, Cuba. The president pulled the plug on military commissions at the start of his first term (only to reinstate them later). The Justice Department announced in 2009 that KSM & Co. would be tried in Manhattan, provoking vigorous protest by the public and Congress that prompted the administration to back down. Attorney General Holder has repeatedly said the case should be in civilian court — even claiming that if the transfer to Manhattan from the military justice system had gone according to his plan, the terrorists would already be convicted and facing the death penalty.
I have responded to the attorney general’s claims on other occasions (including observing how brazen it is for someone who has spent years — both in and out of government — undermining military commissions to complain about how long the commission is taking). I’ve also opined that the attorney general’s maneuvering of two al-Qaeda conspiracy cases into civilian court in Manhattan strategically benefited the defense lawyers at Gitmo: They can now argue that the government is violating fundamental fairness by trying their clients in military court while other defendants charged with the exact same conspiracy have enjoyed the enhanced due process of civilian prosecution.
But is the Justice Department trying to get the case to civilian court by willfully sabotaging the ongoing military commission?
That is the suspicion of a number of family members of those killed in the 9/11 atrocities. It has been stoked by the revelation this week that the FBI has been investigating the Gitmo defendants and their legal representatives for possible intelligence leaks — a revelation that appears to have taken the military prosecutors and the presiding judge by surprise, stoking fears that the commission trial process could be imperiled.
To cut to the chase: I continue to believe Attorney General Holder, with his boss’s approval, is angling to have the 9/11 case tried in civilian court. I do not believe, however, that the ongoing FBI investigation is part of that equation. If the case lands in civilian court, it will be either because of the aforementioned legal ammunition the Justice Department has already given the 9/11 defendants, or because the administration will have engineered a swift, unannounced transfer — Obama and Holder have learned from their earlier mistake: Don’t tell people ahead of time that you’re bringing enemy combatant-terrorists to Manhattan for trial; just do it. A transfer would be immensely unpopular, so I would not expect it to happen until after the November elections. That still leaves plenty of time, since the commission currently does not anticipate having the military trial until January 2015.
Nevertheless, the FBI’s current investigation is not part of these machinations. To be sure, the families’ suspicions are warranted: the Justice Department, of which the Bureau is part, has long trashed military commissions. The FBI, however, has ample reason to conduct the investigation that is underway. The timing is unfortunate, and investigating charged defendants and their counsel is always fraught with problems. But the Feebs are trying to solve a new case, not sabotage the military’s congressionally authorized 9/11 prosecution.
Back in January, media outlets published a manifesto authored by KSM. The manifesto had been disclosed to the defendants in pretrial discovery, after which it was leaked to the press. As is common in terrorism cases, the document was not classified, though it probably should have been. Nevertheless, it was covered by the court’s nondisclosure order. To explain: Discovery of government files is required under due-process rules, but only to enable the defendant to prepare for trial, not for publicity purposes. Consequently, in cases with national-security implications, judges routinely order that discovery be provided for trial prep only; recipients are not permitted to disclose it outside the defense team.
Obviously, someone violated the court order. That is against the law. More significantly — and this is a point being missed in much of the coverage — the leak raises concerns that sensitive information helpful to our terrorist enemies could continue to be revealed publicly if the leaking is not stopped. Remember, minimizing the disclosure of intelligence to the enemy — a huge problem under civilian due-process rules — is a big part of the rationale for having military commissions in the first place. Thus, it is appropriate for the FBI to investigate. In fact, it often happens that a judge whose nondisclosure order has been flouted will ask that the FBI investigate the leak (which can mean investigating not only defense teams but government agencies, which do more than their share of leaking).