In what can only be described as a
continuation of making the United States less friendly to lawfare, the Supreme
Court has turned back an appeal, by detainees at Guantanamo Bay, of a court
ruling that denied them access to American courts. It is largely a reflection
of the changes in the law made due to the passage of the Military Commissions
Act in 2006 after a string of court rulings threatened to force the United
States into a choice of either compromising intelligence or letting terrorists
That choice was due to the rules of discovery in
American courts. In the United States, there is a discovery process, in which
the prosecution must turn over its evidence to the defense. In doing so,
terrorists got the same rights as other criminals. This ended up aiding al
Qaeda's efforts to defeat American
intelligence operations. In one instance, evidence turned over due to
those rules during a trial of terrorists in 1995 eventually fell into al
Qaeda's hands. The United States was, as a matter of law, aiding a terrorist
organization by telling them what we knew about them. Why was this a mistake?
The answer lies in understanding what can be done when you know what someone
else knows about you.
Knowing what one's enemy knows is one of the first
steps in carrying out effective counter-intelligence measures. These have the
goal of denying an enemy knowledge of one's intentions, capabilities, and the
extent of your knowledge about him. This enables one to carry out operations,
be it a terrorist attack on the one hand or rounding up terrorist cells before
they can strike on the other. Knowing what the enemy knows allows a person (or
organization) to figure out who snitched, and to take appropriate measures.
With the knowledge that terrorists were taking advantage of the rules of
discovery in American legal procedure to aid their counter-intelligence
efforts, something had to be done.
The United States ultimately decided to try
terrorist leaders in military commissions, so the classified information could
be kept from falling into the hands of terrorists still out there. However, the
human rights groups still sued over this, and eventually got a series of court
rulings that led to the Military Commissions Act. The legislation set forth
procedures so that terrorists could be tried, but would not have access to the
classified information itself. The terrorists could be put away, while the intelligence
community would be able to maintain its edge.
How important is this intelligence edge? One could
probably gauge its importance in many areas, including the number of successful
attacks by al-Qaeda since the United States adopted its post-9/11 approach.
Some planned attacks have been thwarted, including a plan to hijack airliners
and crash them into British targets, a plan to attack Marines in Djibouti, and
the American consulate in Karachi, Pakistan. Another metric is in the number of
terrorist cells rounded up. Those successes aside, several leaders in Congress,
like Senator Patrick Leahy, have announced their intention to restore
detainees' access to the courts, despite the knowledge that American rules of
discovery have aided al-Qaeda's counter-intelligence efforts.
The intelligence battle is one that is never talked
about much. That's generally how intelligence professionals prefer it. That
said, this fight is likely to be public, with a number of politicians and
pundits talking about civil liberties. The oft-ignored subtext will be about
whether or not valuable methods of gathering intelligence, and the sources of
that intelligence, will be compromised just so some people can feel that
terrorists had a fair trial, never considering that they may have made it more
likely a future attack will succeed. - Harold C. Hutchison