April 6, 2007: 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 loose.

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 ([email protected])