April 13, 2007: 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 some mischief.

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 ([email protected])