Under discovery rules that apply to American criminal proceedings, the government is required to provide to accused persons any information in its possession that can be deemed "material to the preparation of the defense" or that is even arguably exculpatory. The more broadly indictments are drawn (and terrorism indictments tend to be among the broadest), the greater the trove of revelation.
In addition, the government must disclose all prior statements made by witnesses it calls (and, often, witnesses it does not call).
This is a staggering quantum of information, certain to illuminate not only what the government knows about terrorist organizations but the intelligence agencies' methods and sources for obtaining that information. When, moreover, there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial dictates, rather than by the executive branch on the basis of what public safety demands.
It is true that this mountain of intelligence is routinely surrendered along with appropriate judicial warnings: defendants may use it only in preparing for trial, and may not disseminate it for other purposes. Unfortunately, people who commit mass murder tend not to be terribly concerned about violating court orders (or, for that matter, about being hauled into court at all).
In 1995, just before trying the blind sheik (Omar Abdel Rahman) and eleven others, I duly complied with discovery law by writing a letter to the defense counsel listing 200 names of people who might be alleged as unindicted co-conspirators--i.e., people who were on the government's radar screen but whom there was insufficient evidence to charge. Six years later, my letter turned up as evidence in the trial of those who bombed our embassies in Africa. It seems that, within days of my having sent it, the letter had found its way to Sudan and was in the hands of bin Laden (who was on the list), having been fetched for him by an al-Qaeda operative who had gotten it from one of his associates.
Intelligence is dynamic. Over time, foreign terrorists and spies inevitably learn our tactics and adapt: consequently, we must refine and change those tactics. When we purposely tell them what we know--for what is blithely assumed to be the greater good of ensuring they get the same kind of fair trials as insider traders and tax cheats--we enable them not only to close the knowledge gap but to gain immense insight into our technological capacities, how our agencies think, and what our future moves are likely to be.
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Some of our best information is obtained from foreign intelligence services. Naturally, those services are much less forthcoming if they think that what they tell us will have to be revealed in court because of U.S. legal rules. Historically, that was not much of a problem when dealing with the CIA; it is, however, always a concern for a country weighing whether to share some sensitive or potentially embarrassing information with the FBI.
The Saudis' infamous obstruction of the FBI's efforts to investigate the 1996 Khobar Towers bombing is an exquisite example.
In the Clinton years, no matter how many times we were attacked, all the world knew that our approach was to have the FBI build criminal cases.
Indeed, Presidential Decision Directive (PDD) 39, issued in June 1995, announced that prosecuting terrorists and extraditing indicted terrorists held overseas were signature priorities of the administration.
Nearly three years later, after several other attacks and public declarations of war by bin Laden, Clinton issued a press release that both trumpeted as a ringing success his strategy of having terrorists "apprehended, tried, and given severe prison sentences" and announced a new directive, PDD 62. This purported to "reinforce the mission of the many U.S. agencies charged with roles in defeating terrorism," including by means of the "apprehension and prosecution of terrorists." The embassies in Kenya and Tanzania were bombed less than three months later.
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