In his column today in Salon, Glenn Greenwald puts this fear to rest:
To see how false this claim is, all anyone ever had to was look at the Classified Information Procedures Act, a short and crystal clear 1980 law that not only permits, but requires, federal courts to undertake extreme measures to ensure the concealment of classified information, even including concealment from the defendant himself. Section 3 provides: "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." Section 9 required the Chief Justice of the Supreme Court to consult with the Attorney General and Defense Secretary to develop rules to carry out the Act's requirements, and the resulting guidelines provide for draconian measures so extreme that it's hard to believe they can exist in a judicial system that it supposed to be open and transparent.
Many federal judges -- particularly in criminal cases -- are notorious for being highly sympathetic to the government. That's even more true in a case involving one of the most hated criminal defendants ever to be tried in an American court, sitting a very short distance from the site where he is alleged to have killed 3,000 people in a terrorist attack. And note that the law permits the judge no discretion: if the Government claims something is classified, then "the court shall issue an order to protect against the disclosure of any classified information." With some exceptions, ever since the "War on Terror" began, nobody has safeguarded government secrets as dutifully and subserviently as federal judges -- even when those secrets involve allegations of war crimes and other serious felonies. That's what DOJ officials mean when they keep praising Southern District of New York judges for their supreme competence and expertise in handling terrorism cases. Federal courts in general love to keep what is supposed to be their open proceedings a secret, but that instinct is magnified exponentionally in national security and terrorism cases.
Even during the Bush years, numerous defendants accused of terrorist acts were tried and convicted in federal courts -- John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla. Those spewing the latest right-wing scare tactic (Osama bin Laden will learn everything if we have trials!) cannot point to a single piece of classified information that was disclosed as a result of any of these trials. If that were a legitimate fear, wouldn't they be able to? Like most American institutions, our federal court system is empowered to shield from public disclosure anything the government claims is secret. Just look at the extreme measures invoked in the Ghailani case to see how true that is.
CLASSIFIED INFORMATION PROCEDURES ACT