Trials of terrorist provide them with significant intelligence about US

Andrew McCarthy:

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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.

In considering the asserted "intelligence failures" of September 11 and beyond, it is worth bearing in mind this information bounty, which our government consciously decided to provide from 1993 through 2001 even as it was increasingly manifest that the enemy was growing more proficient, its attacks more deadly.

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There is much more in this long article by a man who tried the first World Trade Center bombers. He goes on to point out how the lawfare approach also causes us to get less shared intelligence from foreign sources, because information they provided would be compromised in the discovery process. It si another reason why, I think the best approach with the terrorist is to just hold them to the end of the conflict which is probably beyond their lifetime.