June 9, 2007:
The American Senate Judiciary
Committee has voted to rescind certain portions of the Military Commissions Act
- a move that will draw few headlines, but which holds the potential to do
great damage to intelligence agencies, which are vital in the war on terror.
Should the practice of giving terrorists access to federal courts be resumed,
the Department of Defense would face the choice between protecting the means of
gathering intelligence and the sources of intelligence, and letting terrorists
go free, or placing the information gathered on the record, and risk aiding
terrorists' counter-intelligence efforts.
This is really not a surprise. Many in the new
Democratic Party congressional leadership opposed the Military Commissions Act,
echoing complaints from human rights groups like the Center for Constitutional
Rights and Amnesty International. The Democrats are now tossing this over to
their supporters, in essence, seeking to score political points from their
supporters - and get positive press from the mainstream media.
The problem, of course, is that in the past,
criminal trials have led to intelligence being compromised. In the 1995 trial
of Omar Abdel Rahman, the government's evidence was turned over to his
attorneys. At least one of the documents handed over in accordance with rules
of discovery ultimately found its way to an al-Qaeda headquarters in the Sudan.
That document contained a list of people who were on the government's radar
screen - and thus alerted al-Qaeda to the possibility of surveillance told them
who we were interested in.
This is a bigger deal than it might sound like. If
you know what someone else knows about you, it helps you to figure out how they
might have discovered the information. That enables you to take countermeasures,
be it feeding disinformation through a source you know is compromised, or by
making sure that the snitch is tortured (for information on his intel
connections) and killed. Compromising methods of gathering intelligence, and
the sources of intelligence, also creates a chilling effect. If a source wants
to be extracted, intelligence he might have gathered in the future is lost. The
same loss of intelligence happens when a source stops cooperating for fear of
exposure, which happened in 1995 after then-Congressman Robert Torricelli
burned a CIA source. Cooperation with other intelligence agencies will also
suffer - as they act to protect their methods and sources from being exposed.
The compromising of intelligence sources and
methods of gathering information also makes it more likely that plotted attacks
will succeed. A terrorist cell that is conscious of operational security as the
result of leaks, and which is dealing
with fewer potential snitches, is more likely to evade notice. In essence, they
have a better chance at getting lucky - and a terrorist cell planning an attack
only needs to get lucky once. The terrorists planning the attack on Fort Dix
are the exception - and the next group of terrorists is not going to take their
videos to the local Circuit City or Best Buy.
On the contrary, when terrorist cells do not think
someone is listening, they are more likely to screw up and attract attention.
The more that informants believe they will be protected, the more likely they
are to keep snitching on the bad guys. This means there is a better chance for
the cops and FBI to get alerted. Considering that these agencies are largely
reactive, they can use all the informant tips they can get.
When it comes right down to it, a major battle in
the war on terror will be fought in Washington. Al Qaeda could easily end up a
big winner by gaining invaluable assistance in counter-intelligence, assistance that the DOD will be forced to
provide unless they want terrorists to go free. That is a choice between two
very bad options. - Harold C. Hutchison ([email protected])