In what seems to be a constant
refrain involving captured al Qaeda terrorists, Jose Padilla has now filed suit
claiming torture. While the case was dismissed on technical grounds, it is a
reminder that the American legal system has serious flaws when it comes to
dealing with terrorism. In this case, it is causing a diversion of resources
and could put information about interrogation procedures in the public domain.
Padilla's claim of torture is nothing new. Other
captured al Qaeda personnel have made similar claims, usually unfounded.
According to one captured al Qaeda training manual, this is standard operating
procedure for captured terrorists, and it has been pointed out in the past by
American officials. The media's failure to take note of this means that frivolous claims will get a lot of
attention when the suits are filed, and the press releases from human-rights
groups appear on the wires. The fact that it is very easy to file a lawsuit in
the United States increases the chance that an incarcerated terrorist can cause
These lawsuits also tend to divert resources. When
officials and agencies are sued, they have to spend time and effort (not to
mention money) to defend themselves in court, consult with attorneys, and deal
with the press. These distractions can make agencies and officials a little
less efficient. Considering that impaired efficiency of intelligence agencies
and the Department of Defense can lead to a successful terrorist attack, this
is not a minor issue. At the very least, the negative coverage generated by a
lawsuit can make it easier for the next round of suits, and can encourage
politicians to score points by hamstringing the intelligence agency that is on
the receiving end of lawfare.
The other risk, one that is arguably far more
likely to lead to an attack succeeding, is that information about interrogation
procedures could be made public. How? In a lawsuit, there are a number of
things that go on. All of those are public record. A high-profile lawsuit, like
those involving detainees, invariably draws a lot of attention. And the
American rules of discovery, not to mention "sunshine laws", will
make any questions about interrogation procedures available to anyone with a
web browser. How can this make an attack more likely?
The answer is simple: If you know how an enemy will
interrogate any of your people they capture, you can prepare them. Not only can
court records go into the techniques used in an interrogation, but also in how
far interrogators are allowed to go. This allows for realistic counter-interrogation
training, making it less likely that a captured terrorist will break.
Interrogations of high-ranking al Qaeda members have yielded information that
has led to numerous terrorist cells being broken up, with their members
captured or killed. Not having that information could have meant additional
terrorist attacks would have succeeded.
The law-enforcement model has serious flaws when
dealing with terrorism. The biggest can be the many ways that sensitive
information, like methods of gathering intelligence, sources of information,
and interrogation techniques can be exposed. It also is very easy to turn a
trial into a media circus. Furthermore, when a case is dismissed on a
technicality, it can always be re-filed, perpetuating the distraction of
officials and agencies. Even when a terrorist is in jail, his lawfare can run
interference for others. - Harold C. Hutchison (firstname.lastname@example.org)