Obama's gift of intelligence to al Qaeda

John Yoo:

'This is a prosecutorial decision as well as a national security decision," President Barack Obama said last week about the attorney general's announcement that Khalid Sheikh Mohammed and other al Qaeda operatives will be put on trial in New York City federal court.

No, it is not. It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

KSM is the self-proclaimed mastermind of the 9/11 attacks on the World Trade Center and the Pentagon—and a "terrorist entrepreneur," according to the 9/11 Commission report. He was the brains behind a succession of operations against the U.S., including the 1996 "Bojinka plot" to crash jetliners into American cities. Together with Osama bin Laden, he selected the 9/11 terrorists, arranged their financing and training, and ran the whole operation from abroad.

After the U.S. invasion of Afghanistan KSM eventually became bin Laden's operations chief. American and Pakistani intelligence forces captured him on March 1, 2003, in Rawalpindi, Pakistan.

Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

...

I think the African embassy trials intelligence disclosures were even worse. It was no secret that bin Laden was using a satellite phone. He even used to call the BBC after the bombing to deny involvement. What he did not know at the time was that the NSA was intercepting his calls to the bombers and the transcripts of those calls were introduced into the record at the trial. From that point on he quit using the phone and we lost crucial intelligence that could have prevented the 9-11 attacks.

What makes this decision a further mistake is that it is an unforced error. KSM has already said he wanted to plead guilty in front of the military commission that was going to try him. The intelligent thing to do is accept the plea and safeguard our intelligence. After all, the administration plans on using the commissions for other detainees, sop they cannot argue that they lack legitimacy.

What is really going here is that Obama is trying to returned to the failed lawfare policies of the Clinton administration.