What Fox & Friends Doesn't Understand About The Khatalla Trial And Military Intelligence

Fox Host Pushes Dubious Notion That Trying Benghazi Suspect In Federal Court Will Leak Sensitive Military Secrets

››› ››› CAL COLGAN

Fox News host Steve Doocy argued that the decision to try accused Benghazi terrorist Ahmed Abu Khatalla in a civilian court will allow terror networks access to U.S. intelligence, but the Classified Information Procedures Act (CIPA) gives the government and courts broad authority to prevent such disclosures.

Benghazi Suspect Khatalla Arrives In United States To Face Trial

Suspect In 2012 Benghazi Attacks Arrived In The U.SOn June 28, Ahmed Abu Khatalla, the suspected leader of the 2012 attacks on a U.S. facility in Benghazi appeared in federal court in the U.S. where he pleaded not guilty to charges of providing material support to terrorists.

A Libyan man accused of involvement in the deadly attacks on a U.S. diplomatic facility in Benghazi in 2012 entered a not guilty plea in federal court in Washington, D.C.,Saturday after making an unusual voyage across the Atlantic aboard a U.S. Navy ship. [Politico6/30/14]

Fox Host Claims Civilian Trial Will Disclose Sensitive Military Information To The Enemy

Fox News: Civilian Trial Will Disclose Military Intelligence To The Enemy. On the June 30 edition of Fox News' Fox & Friends, co-host Steve Doocy and guest Andrew McCarthy from the National Review argued that trying Khatalla in civilian court expose classified military information to other terrorists.

MCCARTHY: The problem has never been being able to convict terrorists in court. We've always been able to do that. Our process does allow that. The problem is the national security price tag on that. Under the laws of war, you're allowed to detain people indefinitely. You don't have to have the public trial that forces you to disclose all kinds of information the government has in its intelligence files to the enemy during the war while the enemy is trying to kill not only Americans, but our men and women in harm's way.

DOOCY: Sure. That's what's going to happen here. During the discovery process, the bad guy's side, defense team, is going to get whatever secrets are germane to this war on terror.

MCCARTHY: Yeah exactly. And in fact, this guy has been described in the media as the ringleader. You need a ring to be the ringleader. He's the only one whos here. So we'll be giving him all the intelligence that we have on the Al-Qaeda conspiracy, all the intelligence we have on what was going on in Benghazi on the run up to September 11 and the aftermath and he's the only one we have here, which means we'll be educating the enemy about what we know about the enemy. [Fox News, Fox & Friends6/30/14]

Classified Information Act Procedures Act (CIPA) Protects Classified Information In Court

CIPA: Courts Have Power To Protect Disclosure Of Classified Information. Under the Classified Information Procedures Act, the government may ask the court to protect against the disclosure of classified information "disclosed by the United States to any defendant in any criminal case." The court may authorize the government to delete or substitute classified information available to the defendant:

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.


The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. [Office of the Law Revision Counsel, Classified Information Procedures Act, Accessed 6/30/14]

Human Rights Watch: CIPA "Is Effective In Preventing The Dissemination Of Classified Information." Human Rights Watch further explained that CIPA "gives the government wide latitude" to protect against revealing or comprising sources or other intelligence:

Some defenders of the military commissions argue that terrorism prosecutions do not effectively protect national security evidence, are too resource-intensive, and are insufficient to prevent future acts of terrorism because they are limited to punishing past crimes.

These criticisms are unconvincing for the following reasons:

  • The Classified Information Procedures Act (CIPA) is effective in preventing the dissemination of classified evidence. CIPA gives the government wide latitude to provide the defendant and the jury substitute forms of evidence to protect against the disclosure of evidence and sources it needs to protect. It has been used in countless terrorism cases, allowing the government to introduce evidence obtained by foreign law enforcement and intelligence sources without compromising the integrity of those sources. [Human Rights Watch, 11/16/08]

Congressional Research ServiceCIPA Allows Federal Government To Prosecute Defendants Without Risking The Disclosure Of Protected Information. According to the Congressional Research Service, CIPA serves the purpose of "protecting the disclosure of classified information generally" (emphasis added):

Under CIPA, if the government objects to disclosure of classified information that is material to the defense, the court is required to accept that assertion without scrutiny, and impose nondisclosure orders upon the defendant. However, in such cases the court is also empowered to dismiss the indictment against the defendant, or impose other sanctions that are appropriate. Therefore, once classified information has been determined through the procedures under CIPA to be material, it falls to the government to elect between permitting the disclosure of that information or the sanctions the court may impose, including dismissal of charges against the defendant.


CIPA may be more accurately characterized as supplementing judicial authority to resolve evidentiary disputes in  criminal cases involving classified information. Additionally, the statute has not been read by the courts as simply establishing a procedure by which defendants are provided with access to classified information necessary to their defense; rather, the statute also serves the broader purpose of protecting the disclosure of classified information generally, by providing the government with procedures for carrying out prosecutions without risking the disclosure of protected information. [Congressional Research Service, 4/2/12]

Brennan Center: Federal Courts Hearing Terrorism Cases Are "Well-Equipped To Resolve Novel Secrecy Problems." In a report titled "The Secrecy Problem In Terrorism Trials," the Brennan Center reported that CIPA is "highly effective" in protecting classified information, making courts "well-equipped" to try terrorism cases:

Although CIPA limits the use of unclassified substitutions for classified evidence - as it must to protect fairness - the statute has proven highly effective. One measure of its effectiveness is how well it has addressed the problem of prosecuting espionage cases, for which it was principally designed. These cases can pose considerable obstacles to prosecution. They directly implicate national security secrets. In order for the government and defense simply to tell the story of the case, information about the inner workings of the intelligence community must, to a certain extent, be revealed. Further, an espionage case may require testimony from an intelligence officer or other government agent involved in covert activity.

Despite these obstacles, CIPA has demonstrably succeeded in facilitating espionage prosecutions by providing a means of protecting the more sensitive aspects of the events and persons involved in a case while enabling enough information to be revealed for the prosecution to go forward. CIPA's enactment enabled an aggressive campaign of espionage prosecutions throughout the 1980s and 1990s, resulting in the conviction of some of the most notorious spies in the history of the country.


There are a number of ways the government can manage classified information problems within the confines of the federal criminal system.

  • Using CIPA, the government can ask a court to filter out classified evidence from a case wherever unclassified substitutions can be used instead;
  • The government can seek to restrict access to classified evidence that must be disclosed, through protective orders requiring classified discovery materials to be produced to cleared counsel only, and through closure of trial proceedings to the public during the introduction of classified information into evidence;
  • The government can choose to declassify information where the benefits of using it in court are substantial and the national security risks are acceptable;
  • The government can avoid bringing charges implicating classified information by bringing alternative charges that can be proved without it; and
  • As a last resort, under careful judicial supervision, the government can seek to hold the defendant in time-limited, pre-trial detention while it develops unclassified evidence or the sensitivity of its classified evidence fades.

These approaches cannot eliminate all conceivable secrecy problems. But each progressively narrows these problems, so that, at the end of the day, only a manageable sliver of problematic cases remains. It requires an improbably series of wrong turns on a flow chart in order for a terrorism suspect to be in no way prosecutable or detainable in federal court.


Particularly if the available tools are refined along the lines outlined here, courts confronting terrorism cases will be well-equipped to resolve novel secrecy problems within the bounds of the Constitution, preserving the American commitment to transparency and accountability through an effective adversary system. [Brennan Center, accessed 6/30/14]

Civilian Courts Have Been More Effective In Prosecuting Terrorists Than Military Commissions

Human Rights First: Civilian Criminal Courts Have Convicted 500 Terrorists, Military Commissions Have Only Convicted Eight. A fact sheet from Human Rights First explained that significantly more terrorists have been successfully convicted in civilian criminal courts than by military commissions (emphasis original):

Federal civilian criminal courts have convicted nearly 500 individuals on terrorism-related charges since 9/11. Military commissions have convicted only eight. Federal court convictions include those resulting from investigations of terrorist acts and of criminal acts by those with an identified link to international terrorism. [Human Rights First, accessed 6/30/14]

Center For American Progress: Civilian Courts Are Tougher On Suspected Terrorists. Senior Fellow for the Center for American Progress Ken Gude called the military commissions system "shockingly poor" and explained that criminal courts "are a far tougher and more reliable forum for prosecuting terrorists than military commissions":

Military commissions give terrorists short sentences

It's a near universal presumption that military commissions are the "tougher" forum for prosecuting suspected terrorists, but the experience since their formation in 2001 shows the opposite. Two of the three individuals convicted in military commissions are already out of prison living freely in their home countries of Australia and Yemen.

[. . .]

The only person convicted in a military commission that remains in jail is Ali al-Bahlul. Bahlul was Al Qaeda's top propagandist and video maker and was charged with soliciting murder and material support for terrorism. Bahlul, however, only received his life sentence after he boycotted the entire trial process and was convicted without mounting a defense.

The most surprising feature of the military commissions is their leniency. The lesson to defendants seems to be to participate in your defense and you will be set free.

Criminal courts are a reliable, effective means of prosecuting terrorists

The extensive record of criminal courts in successfully prosecuting terrorists stands in stark contrast with the shockingly poor military commissions system. Since 2001--the same period in which military commissions have convicted just three terrorists--criminal courts have convicted more than 200 individuals on terrorism charges, or 65 times more than military commissions. Criminal courts racked up these convictions with none of the uncertainty that still plagues the military commissions system.


Criminal courts hand out tougher sentences than military commissions

The sample size of military commissions' sentences is very small, but there are some analogous cases in the criminal justice system to compare the length of sentences in the two forums. The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh--the so-called American Taliban--in a criminal court, while comparable charges to the material support for terrorism conviction for Salim Hadman can also be found in criminal courts.

Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons. Hicks received a nine-month sentence while Lindh got 20 years. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.

Hamdan was convicted of providing material support for terrorism for being Osama bin Laden's chauffer. In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.

At most, Osama bin Laden's driver got a little more than half the sentence from a military commission that a criminal court doled out to someone for driving a low-level Pakistani extremist. [Center for American Progress, 1/20/10]

Posted In
The Judiciary, National Security & Foreign Policy, Terrorism
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Steve Doocy
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