April 29, 2007

The recent disbarment of Lynne Stewart is one of the latest examples of
what is wrong with using the law-enforcement approach to dealing with
terrorism. Not only is there the fact that all too often, treating
terrorism as a criminal matter to be dealt with by law enforcement
agencies, leads to terrorists going back onto the street, but there are
problems with the lawyers.


Stewart was convicted for providing material support to terrorists while
she was representing Sheikh Omar Abdel Rahman during his terrorism
trial. One of the things she did was pass messages to Rahman's
supporters – including exhortations to kill those who opposed his brand
of Islamic fundamentalism. Also, during Rahman's trial, 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 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. This was an intelligence
disaster.



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. The
suspected source's ending will not be a happy one. This not only
deprives intelligence agencies of a source, but also makes recruiting
future sources more difficult.



The risks of compromised intelligence are serious, and should be
obvious. They primarily include the loss of sources of information (due
to death or non-cooperation) and decreased efficiency from methods that
have been compromised due to adaptations by terrorists (for instance, if
they know cell phones are being intercepted, they will shift to
messengers). These could potentially lead to successful attacks in the
future.



This is why the Department of Defense is trying to clamp down on the
number of meetings lawyers have with detainees. In at least one case,
lawyers gave the detainees information about Amnesty International
conferences and terrorist attacks that boosted their morale, increased
resistance to interrogation and which encouraged attacks on guards. Over
600 attacks have occurred, many involving bodily fluids. This is not a
small concern. If terrorist morale is low, there is a better chance of
getting them to give up information that may help prevent future
attacks.



The Guantanamo Bay setup is not the best situation, but other
alternatives do not seem any better. Terrorists need to be kept out of
circulation, and methods of gathering intelligence and sources of
information need to be protected. A number of human rights groups are
complaining about these clampdowns, claiming that the Administration is
turning Guantanamo Bay into a legal black hole. Since real black holes
are not presently accessible, dumping terrorists into a legal black hole
will have to do.