September 22, 2006: If U.S. politicians John McCain, John Warner, and Lindsey Graham prevail in their political battle with the American government over military tribunals, the United States could effectively find itself returned to the policies of the Clinton Administration, when convicting terrorists often compromised the gathering of intelligence. How? Because one of the provisions in the McCain-Warner-Graham legislation would require that terrorists be shown all the evidence against them. Despite their noble intentions, their legislation, if passed, will increase the chance that a terrorist attack will succeed in the future.
How does the proposal place intelligence gathering at risk? The answer is in the discovery process, which requires the government to turn over information pertaining to witnesses, potential witnesses, and the government's case in general. In 1995, such information was turned over to lawyers representing Omar Abdel Rahman, the blind cleric and leader of the terrorists involved in the 1993 World Trade Center Bombing. At least one of the documents ultimately found its way to 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.
Once a person, group, or country find out that they are of interest to an intelligence agency, two things happen. First, they tend to become very careful with regards to communications - they take steps to throw off surveillance efforts, and they will even shift to means that cannot be intercepted (like couriers or flying for face-to-face meetings). Second, they begin to wonder how the information is acquired - and try to cut off the flow. If they find out enough of what an intelligence agency knows, they will have an idea of who might be a source… and that suspected source's ending will not be happy.
Compromising methods of gathering intelligence, and the sources of intelligence 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 loss of sources, increased caution by terrorists, and a reduction in cooperation from other intelligence agencies will combine to leave the American intelligence community hamstrung. What's at stake there? For an example, cooperation among American, British, and Pakistani intelligence agencies was crucial in thwarting the plot to destroy a number of airliners over the Atlantic last August. Other attacks have also been thwarted by information obtained by the intelligence community, which has been given a much freer hand since the attacks of September 11, 2001. A lack of cooperation - preventing intelligence agencies from connecting the dots - could have easily allowed those attacks to succeed.
Five years after the attacks, which were brought about by hamstringing the intelligence community and treating terrorism as strictly a law-enforcement issue that required compliance with various protections that only compromised methods and sources of intelligence gathering, Senators McCain, Warner, and Graham are about to force the military to do the same thing if they want to keep terrorists on ice. In this case, one of the critical lessons of 9/11 is being ignored. - Harold C. Hutchison ([email protected])