Information Warfare: Terrorist Victories in Court

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August 14, 2006: While the wars with bullets in Iraq, Afghanistan, and Lebanon draw most of the headlines, the wars with legal briefs, arguments, and numerous Latin terms continue in American courtrooms. These suits, flying under the media's radar, are probably as dangerous to the United States and its allies as the wars with bullets are. Recently, seventeen cases involving the NSA's efforts to track terrorist communications were consolidated. The judge who will hear these cases recently refused to dismiss the EFF's (Electronic Frontier Foundation) suit despite the DOJ (Department of Justice) citing possible damage to national security.
The concern is not so with the lawsuits themselves. Filing a suit does not damage national security. The real risk to national security concerns the documents given to the Electronic Frontier Foundation, which detail how AT&T cooperated with the NSA. If the case goes to trial, the contents of these documents will be discussed in open court. That means anyone can access them. If the methods of gathering intelligence are widely known, counter-measures can be developed and used. This is why a lot of the methods used to gather intelligence in World War II (particularly codebreaking) were kept classified for decades after the Japanese surrender ended the war in 1945. Similarly, the Verona project stayed secret in the 1950s, even when information from that project could have defused controversies over the prosecution of the Rosenbergs or Alger Hiss. The reputations of some anti-communists proved to be much less important to the government than preserving secret programs.
After the attacks of September 11, 2001, many of the restrictions imposed on the intelligence community in the wake of the Church Committee hearings of the 1970s were lifted. CIA also lost a lot of its human intelligence assets in the late 1970s as well. In the 1990s, other scandals led to more restrictions. These restrictions arguably set the stage for those attacks. The stakes in these wars without bullets are much higher than they might seem. One example of this can be seen in the recent derailing of a plot to destroy airliners by the British. Financial transactions picked up by the American government's surveillance efforts indicated the terrorists were planning a dry run, triggering the round-up, saving hundreds of lives. – Harold C. Hutchison (haroldc.hutchison@gmail.com)

 


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