March 24, 2007: The law-enforcement model has been a very poor method of dealing with terrorists. The latest example comes in the wake of Khalid Sheikh Mohammed's confession. It seems that the confession has prompted some terrorists to appeal their convictions by trying to say he was responsible. Once again, the legal system is being used by terrorists to, at a minimum, cause problems. In 2002, several terrorists were captured in Pakistan, and convicted for various acts. One of them was convicted of murdering journalist Daniel Pearl, something Khalid Sheikh Mohammed now takes credit for. 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.

For instance, a German appeals court has ordered the freeing of a recent al-Qaeda associate after legal maneuvering by one of the terrorists lawyers. This was despite the fact that the terrorist was found to be a member of the Hamburg cell of al Qaeda. An earlier verdict, that found the terrorist guilty, was thrown out in 2004 by a German court due to American refusals to allow questioning of al Qaeda members in custody at Guantanamo Bay. This follows on the heels of the release on parole of one of the terrorists that hijacked TWA Flight 847 in 1985, killing a U.S. Navy diver.

In this case, the appeals process has the potential to compromise the gathering of intelligence. If Khalid Sheikh Mohammed is blowing smoke in his confession, it will need to be revealed. And in the process of revealing how they know he is blowing smoke, they will be telling the court just what they know. In an era where many appellate briefs are placed on the internet, and thus available worldwide, this can be a serious problem. These briefs also get handed to the other side's lawyers. In 1995, evidence 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, in accordance with the discovery process. 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. In one sense, the confession may be Mohammed's attempt to free fellow terrorists, once again using Western legal rules to help al Qaeda.

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 a happy one.

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.

For human rights groups, compromising sources and methods of gathering intelligence is an acceptable price to pay. After all, principles are involved. On the other hand, the price of compromised intelligence will be paid down the road in the lives of people who just happen to be around when the next attack hits. Their human rights, though, do not seem to be of any concern to human rights groups. - Harold C. Hutchison ([email protected])