Statement of the Chief Prosecutor on This Week's Hearing in the 9/11 Case

Part of an Open and Accountable Process that Considers All Relevant Facts Recently, a victim family member asked me why critics continue to claim the process is too secretive. Her perspective about the proceedings is an informed one, as she has visited Guantanamo, has viewed military commissions as well as federal civilian trials, and has, on occasion, obtained transcripts and briefs from the military commissions website. Indeed, a thesis that persists in the blogs and talking points of certain private advocacy groups—despite a mounting record contradicting it—is that in military commission trials, allegations of past misconduct by officials or agents of the government can be kept secret. It is even darkly suggested that secrecy and alleged overclassification of information may be a reason for using military commissions. While I acknowledge and respect the desire for scrutiny of government action that seems to lay behind some of the criticism, this secrecy or intentional overclassification thesis, as applied to trials ultimately held under the Military Commissions Act of 2009 (the “Act”), is difficult to reconcile with fundamental truths.

Such trials are part of an open and accountable process that considers all relevant facts. The methodical, law-governed, and sharply adversarial nature of these proceedings enables a military commission convened under the Act to determine whether the charges that an accused has violated the law of war are true, while also enabling it—as well as the public and its many representatives in attendance—to evaluate whether claims of unfairness or injustice have any merit.

To be clear, our national security interests, and the interests of justice, are served by a host of institutions and actors of which military commissions, and the different officers and entities participating in them, are only part. Professor Jack Goldsmith, in his book Power and Constraint, describes the many checks and balances that discipline our large and active government. These include the separation of powers among co-equal branches required by the Constitution. This structural constraint, for instance, makes our Courts the ultimate arbiters of what the law is and renders Executive Branch action subject to oversight by Congress.

But these checks and balances also include a range of dynamic and more modern influences not fully captured by broad reference to the separation of power among branches. They include, to name a few, national security journalism; inspectors general, government lawyers, accountability boards, and investigative or prosecutorial efforts within and across the Executive Branch and its agencies; habeas corpus petitions and other actions in federal court filed by pro bono law firms or privately funded civil liberties and advocacy groups; requests for government documents under the Freedom of Information Act; and more detailed Executive Branch reporting requirements and oversight measures undertaken by Congressional committees in the modern era of ever-larger and more technical and specialized government functions.

None of this can excuse a lack of vigilance going forward, both because robust checks and balances come with costs of their own—including that they can delay or blunt Executive Branch actions that depend upon speed and decisiveness to be effective—and because continued scrutiny remains necessary by the many watchers in Goldsmith’s “synopticon.” But the mechanisms Goldsmith describes do, in combination and over time, yield a form of dialogue that integrates complementary contributions. Those mechanisms also yield greater and more responsible empowerment of government. The result is counterterrorism and justice efforts, including trials by military commission, that are made accountable and legitimate through constraint. Thus legitimated, they may then better proceed to their tasks of determining the facts of the charged violations of the law of war, deciding guilt or innocence on each specification of each charge, and adjudging punishment for those found guilty beyond a reasonable doubt.

The most important constraint, of course, is the law. And in view of the allegations of sinister secrecy that caused the victim family member recently to query me, it is instructive to review at length what the authoritative executive order says can and cannot justify the classification of information:

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends upon the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.

Executive Order 13,526—Classified National Security Information (Dec. 29, 2009). Mindful that critics can always claim the government is not following the law as set forth in its own orders, serious observers will be challenged to find fault with this statement of overarching policy.

The specific rules within the order are as soundly conceived as the overarching objectives underlying them. In no case shall information be classified, continue to be maintained as classified, or fail to be declassified to conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information that does not require protection in the interest of the national security. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security, and unless it pertains to one or more of only eight categories:

• military plans, weapons systems, or operations;

• foreign government information;

• intelligence activities, intelligence sources or methods, or cryptology;

• foreign relations or foreign activities of the United States, including confidential sources;

• scientific, technological, or economic matters relating to national security;

• United States Government programs for safeguarding nuclear materials or facilities;

• vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

• the development, production, or use of weapons of mass destruction.

Critics may claim that officials in the Executive Branch serving as designated “original classification authorities” under the order are not meaningfully checked in the exercise of that duty by judges, but judges themselves appreciate that vindicating individual rights and upholding the law from within chambers and courtrooms lacking a daily intelligence feed actually situates them poorly to second-guess Executive Branch counterterrorism decisions. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010). The absence of an immediate judicial check on every aspect of an executive function does not mean the exercise of that function is unaccountable, as these officers are subject to removal by elected officials who themselves are accountable to the people. Moreover, original classification authorities swear allegiance to no political party or private interest, but rather take oaths to uphold the Constitution.

The order requires that information be declassified when it no longer meets the standards for declassification, and it details a methodical procedure for this to be done. In some exceptional cases, often involving information whose disclosure poses a lower risk of damage with the passage of time, the need to protect such information may come to be outweighed by the public interest in the disclosure of the information. In these cases, the order calls for the information to be declassified by the appropriate agency head or other senior official as a matter of discretion. Yet this discretionary process is for exceptional cases. The norm is for information to undergo automatic declassification after a pre-established period or to be declassified as a result of systematic review, each method governed by sensible procedures specified in the order.

Does the fact that these rules and procedures are sound mean that overclassification does not exist? Certainly not, and achieving the priorities described in the executive order’s overarching statement of policy requires continual and conscious effort by diverse entities. Overclassification can be a serious problem, as can leaks of classified information, the risk of which tends to increase if a perception arises that information not really requiring protection is being improperly banner-marked “secret.” But I respectfully reject the secrecy or intentional overclassification thesis as advanced by critics of this reformed military commission process. All who are interested enough to observe them will be able to arrive at their own assessment of the fairness of the proceedings. Claims that these trials will inevitably foreclose discussion of relevant matters are themselves unfair. They rely upon implausible and offensive assumptions that many different officials are conspiring to undermine the very law they have an independent duty to uphold. Increasingly, such claims shall prove to be mistaken as the classification and declassification apparatus—imperfect because all human processes are imperfect—self-corrects over time within the system of distributed checks and balances described above.