Crimes, War Crimes and the War on Terror

[Ken White]

...On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic )

I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

[wm]

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...
I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to. Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact. If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

[Ken White]

I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to.

Agreed and that was a large part of my point in the comment. I believe Churdhill had it right when he said "You can always rely on the Americans to do the right thing -- after they have tried every conceivable alternative." We do generally try but our governmental system is conducive to false starts and that is exacerbated by the bureaucracy -- and too often enhanced by stupidity in high places...

Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

Perhaps, however my less benign take is that the lawyers screwed the pooch in the process.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact.

That too is possible but I'm strongly inclined to believe that it's simply the aforementioned Churchill syndrome in action. As they say, never ascribe to evil what is due to stupidity.

If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

Those types of apologia always appear after every traumatic event; self justification is strong instinct...

I'd submit that in the case of the two you cite, the former is indicative of the fact that those, like Bush (and a lot of Generals), who want 'people they know and trust' in positions of power are the progenitors of the Peter Principle and that the latter author is added proof of that, due to Cheney doing the same thing, as well with the fillip of a massive ego in government not being an asset.

We do the right thing far more often that not and that is a good thing. Generally when we do not do so it's due to a person; a squeaking wheel, in the wrong place at the wrong time who takes deliberate or inadvertent advantage of the governmental system and the bureaucracy to effect an action that he or she believes to be required. Usually, the system catches that, albeit slowly, then corrects itself.

Unfortunately, due again to the system, the correction is frequently an over correction, thus we seem to lurch about like a drunk from one extreme to the other before finally getting it right. It confuses the daylights out of the rest of the world who prefer to take it slow and easy and do not recognize that we are taking it slow -- just not easy. It's not the American way.

The annoying thing to me is that has been a feature (or a bug?) in our government for a great many years. Seems to me that a workaround for that should be developed. It could be easily done -- except for the fact that each new Administration will reject anything that has gone before and try to do it their way. That is just ego driven stupidity.

I can hardly wait until this time next year...

[marct]

Hi Ken,

True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.

This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now. Staes are free to decide on what constitutes a "uniform", and I would argue that the Taliban, which whether we like it or not did form a state that was recognized by a few other countries and the UN, is free to choose what it is. I would argue that legally they are in the same position as a "government in exile". As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument .

What's ridiculous; the US position or the GC failure to protect illegal combatants?

Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.

True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy...

The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.

True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

Nothing wrong with that . Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

[Ken White]

This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now.

Agreed but unfortunately, the GC is not designed to cope with today's modified realities so the Lawyers get to play.

...As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument .

I agree. That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.

Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.

Disagree on the former, agree on the latter -- I did however note that the Lawyers did not do the former at all well...

The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.

That might be possible though my suspicion is that any attempt to do that will be fought tooth and nail by the HR community.

Nothing wrong with that . Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.

An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it.

[marct]

Hi Ken,

That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.

Unfortunately, AQ might, and I say that advisedly and with much gnashing of teeth, fall under the "other militias" clause. Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

Disagree with the first, but agree with the rest . The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...

Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.

You know, we really do agree on a lot of things ! Personally, I have no problems with that - in fact, I have a lot of problems with a mind set that says "Oh, he must be a victim!". Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers. I'm not ready to call the Crown to account on that one.

An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it.

Ken, I'm sure that you will stick around just so you can say "I told you so!!!!" . Actually, we agree on the need for children to learn that their actions have consequences. Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...

[JJackson]

why are they illegal anything?
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
If I declare Ken an illegal combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.

[Ken White]

...Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.

True. Then he'd be a PW with no reason to be tried and no hope of release until the end of hostilities...

... The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...

Awkward perhaps but even the para legislative powers upon states is there only if the state(s) deign to accept them. For more on which see below.

...Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers...

You are aware the US has not ratified some of those protocols? One we and Canada have ratified is the Optional Protocol on the Involvement of Children in Armed Conflict, which requires signatories to 'take all feasible measures' to ensure that children under age 18 do not participate in hostilities... ???

... Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...

Ordinarily, I would not stoop to citing Maxime or Alphonse as examples that such dimwits abound worldwide but Fido Feith had nothing to do with the discussion.

Or, if he did, I missed the connection,,,

[Tacitus]

The question is why are we bothering with holding trials (perhaps instead of summary execution) for people we just know are guilty of something.

Q: What do the following men all have in common?
Martin Bormann, Karl Donitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Hermann Goring, Rudolph Hess, Alfred Jodl, Ernst Kaltenbrunner, Gustav Krupp von Bohlen und Halbach, Robert Ley, Baron Konstantin von Neurath, Franz von Papen, Erich Raeder, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Dr. Hjalmar Schacht, Baldur von Schirach, Arthur Seyss-Inquart, Albert Speer, and Julius Streicher.

A: They were all accused of various war crimes and given trials at Nuremburg.

Not in some kangaroo court in an offshore Cuban penal colony, either. Evidence was presented, and they were given the opportunity to defend themselves against charges. It is because we are Americans. We have a suspicion against arbitrary arrests and imprisonment by either George III (or some possible home grown despot), dating back to the American Revolution.

Interestingly, von Papen and Schacht were acquitted.

I believe most people think that if you are holding somebody as a war criminal or terrorist kingpin, we have some kind of obligation to bring evidence in something like a fair public trial environment. Federal Court or some kind of Nuremberg style military tribunal will do. As it is, the perception is that we are running some kind of Star Chamber.

If we’re dealing with some guy who just happened to be in a Taliban militia, this all seems a bit overkill. What is the problem with just treating him as a POW or turning him over to the Afghan government, anyway, instead of trying to reinvent the legal wheel?

[J Wolfsberger]

From the Third Geneva Convention:

"Part I. General Provisions

"Art.4 Prisoners of War ...

"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

and

"Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Illegal combatant" and "unlawful combatant" don't appear in the conventions. What people are trying to get at with the terms is whether an individual is protected by the conventions. The US has, in fact, provided "the protection of the present Convention" to the detainees at Gitmo. The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

[wm]

The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

If this last is in reference to my use of the phrase 'kangaroo court' in a previous post, please note that I put the phrase in double quotes, which is a fairly common convention for identifying that the wording is being applied in a non-standard way. Double quotes are used to indicate that such an attribution of the noun phrase is a degenerative case, not a standard use for the phrase. I do not view the Gitmo Tribunal as a kangaroo court. I was suggesting that part of the US motivation for holding trials might be very pragmatic--to try to prevent other entities from holding kangaroo court proceedings with US citizens as "defendants." (Please again note the use of the double quotes--a person being charged by a kangaroo court is hardly one to whom the appelation 'defendant' is appropriately applied.)

BTW, I concur with Rex's 4 reasons for abiding by and supporting IHL. I just happen to arrange them in a different priority order. I'd rank the 4 reasons in order of importance as 4, 2, 1, 3 (and 2 is actually a subcategory of 4--it is an example of keeping a promise, which is just another right thing to do.)

BTW, I follow a linguistic convention in the philosophy of logic and language with my use of single quotes. They are being used as a way of differentiating between using a word or phrase as an operative part of a sentence and mentioning that word or phrase--that is, using the words as a name for the word or phrase found inside the single quotes. For example, snow refers to the white stuff on the ground; 'snow' refers to the name we use for the white stuff on the ground.

[Ken White]

As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.

Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.

I'm snowed, I think I'll go get a drink...

[CloseDanger]

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Noncombatants" fall not under convention period. Neigh Constitutional, nor Geneve.

Ergo, their status is determined by the same laws that govern their adversary, Which under profound wisdom established The Uniformed Code Of Military Justice as an equal act of Justice on both our and their "Soldiers".

In the case of GTMO, it is a military tribunal. The prisoners do not consign to anything whatsoever. No code at all. They are merely Men without a religion, nation, country, or funding entity worth a damn.

To show the world that it is okay to officially recognize this kind of fraud (these prisoners) WOULD be criminal.

Your most profound argument before Justice is that you walked a straight line by what is legally, morally, and Godly true. And easily verifiable as well.

[jmm99]

The battle between the government and the detainees has two fronts - the DC Circuit on DTA cases and the DC District on habeas cases. However, it is resolving itself into one issue - the collision between classified data and application of the Brady discovery doctrine.

Since the government has conceded that it cannot meet the discovery timetable it set, it has had to go to a fallback position.

U.S. seeks to escalate detainee delay dispute
Monday, September 15th, 2008 8:11 pm Lyle Denniston
.....
Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned. ...
....
The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous. The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.

But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.

http://www.scotusblog.com/wp/us-seek...delay-dispute/

The government's reply in the District Court, seeking relief from the present scheduling order, is here.

http://www.scotusblog.com/wp/wp-cont...ay-9-15-08.pdf

The reply first contains the concession; notes the need to prepare new factual returns; and then eventually reaches its bottom line:

(reply, pp. 2, 3, 11)
....
As explained in connection with its Motion for Relief, the Government underestimated the time it would take to accomplish the development and finalization of amended and original factual returns in the pending habeas cases. When it could not meet the benchmark it had initially represented to the Court as attainable, it requested relief from the Court in the form of an additional 30 days to complete the filing of the first 50 returns.....
....
... Petitioners have wrongfully interpreted the Governments’ desire to present the strongest possible case for detention as an admission that the Government now finds the records of the Combatant Status Review Tribunal (“CSRT”) “inadequate” to justify detention. See, e.g., Pet. Opp. at 9 n. 7. The Government’s development of new factual returns, however, recognizes that significant legal changes have occurred since the original CSRTs were done and the original returns were filed, and it admits of the possibility of factual changes regarding the cases against detainees. ...
....
.... Petitioners seek to prevent the Court from considering late-filed amended returns and to allow the Government only seven days to file original returns on pain of default or evidentiary sanctions.7 Imposing such sanctions because the Government was overly optimistic in its estimates of how long it would take to ramp up production of returns would not force Respondents alone to pay the price. It would force the American people to shoulder the burden, either in the form of increased risk of the erroneous release of individuals whom the government has determined are enemies of the United States, or in the form of reckless and inappropriate dissemination of classified information without careful review and vetting by the intelligence agencies charged with protecting American interests....

Most (all) readers in this forum will be concerned about the danger of "inappropriate dissemination of classified information". In assessing that risk, one should go back to Judge Hogan's protective order (cited in post # 86 above), and read the whole thing. Then, draw your own conclusions as to whether the court's order will be adequate to the task.

My broken crystal ball suggests that the DC District judges will probably cut the government some slack on the timing of discovery, but will not be that impressed by the classified data arguement on its merits.

------------------------------
On the DC Circuit front, we have a slightly different government approach.

from SCOTUSblog source above
....
Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.....
....
... the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims. At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.

The government's reply filed in the DC Circuit is here.

http://www.scotusblog.com/wp/wp-cont...el-9-15-08.pdf

There, we have this interesting bit of advocacy:

(response pp.4-5)
...
As the Government’s abeyance motions explain, holding the DTA cases, such as these, in abeyance is appropriate given the pendency and rapid movement of the habeas litigation. The two types of cases are duplicative. And the Supreme Court in Boumediene directed that habeas move forward "prompt[ly]," while at the same time holding the DTA proceedings to be a constitutionally inadequate substitute for habeas corpus. Boumediene, 128 S. Ct. at 2275. Thus, Judge Hogan has entered an order requiring expedited briefing on case procedures and the production of at least 50 factual returns every month with respect to cases he is coordinating. Scheduling Order, In re Guantanamo Bay Litig., Misc. No. 08-442 (D.D.C. July 11, 2008). Moreover, the Government has additional obligations in the cases pending before Judges Leon and Sullivan. Indeed, Judge Leon recently issued an order scheduling the first merits hearing in a case before him for October 6, 2008. See Scheduling Order, Boumediene ~. Bush, Civ. Case No. 04-1166 (D.D.C. Aug. 27, 2008).

So, while the government is moving in DC District to delay its proceedings, it is moving in DC Circuit to stay its proceedings because the DC District is moving ahead so quickly.

In the government's defense (fair is fair), the response does specify the efforts being undertaken here:

(response pp. 5-6)
...
The preparation of factual returns in the habeas cases is an enormous undertaldng. As the Government recently explained to the district court, the Department of Defense has approximately 30 attorneys working exclusively on the habeas litigation (with more to be deployed), and has diverted intelligence personnel to work full-time in support of the habeas litigation. See Respondent’s Motion for Partial and Temporary Relief from the Court’s July 11,2008 Scheduling Order, In Re Guantanamo Bay Litigation, No. 08-442 (filed Aug. 29, 2008), at 4. The Department of Justice has assigned or detailed more than 50 attorneys to producing factual returns and litigating the more than 250 habeas cases, and the CIA presently has more than 50 attorneys, paralegals, subject matter experts, and classification officials involved in the process of reviewing classified factual returns - a necessary step to their submission in the habeas litigation. ... The Government’s resources are finite, and they will not permit it to litigate 190 DTA cases and more than 200 fast-track habeas cases at the same time at the rate ordered by the district courts.

So, a question to those in law enforcement. If your prosecutor's office had roughly 130 attorneys, could it handle some 400 cases (recall these are basically unlawful firearms and explosives cases) on an expedited basis ?

----------------------------------------
I am also aware of the litigation game - known as "graymail" - where the threatened use of classified data, sources and methods, is a tool to force an advantageous settlement or dismissal of charges.

Here is a recent example (not a "War Crimes Case"), where the government is claiming the defendant is doing exactly that. The defendant, on the other hand, claimed the government had improperly influenced the grand jury - that claim was rejected by the judge.

News - Channel 8
Ex-CIA Exec Facing Trial Says He'll Expose Agents, Programs
posted 8:58 pm Tue September 09, 2008
McLean, Va.
....
A former top CIA official accused of corruption and fraud is threatening to expose the identities of numerous agents and programs as part of his defense, prosecutors said. ... In a court filing, prosecutors allege that former CIA executive director Kyle "Dusty" Foggo is trying to gum up the works of his trial, scheduled for November, by delving into classified information that is irrelevant to his case.

http://www.news8.net:80/news/stories/0908/552040.html

Many of the filings in the Foggo case have been sealed because of references to classified data. Federal judges do know how to protect classified data.