Bagged By The Lawyers: The Best Intelligence Gathering on Terrorism is Coming Not from Spies but From Court Trials

Bagged By The Lawyers: The Best Intelligence Gathering on Terrorism is Coming Not from Spies but From Court Trials.

By Juliette Kayyem
Reprinted from Newsday
February 11, 2001

A central tenet of America''s counterterrorism policy is that terrorists will be brought to justice. It is a perfectly American attitude. The Israelis are much more ruthless; the Greeks are much more permissive; and the French murmur "c''est la
vie." We we opt for law enforcement.

Yet as the trial of the four defendants in the 1998 U.S. Africa embassy bombings case began in a federal courthouse in New York last week, we could be sure of only one thing: Regardless of the verdict, Americans will still be vulnerable to terrorism. That has raised questions about whether a trial, any trial, can effectively combat terrorism.

We have, after all, other options: diplomacy, sanctions, even air strikes and military engagement. Should we treat international terrorism like other crimes? Is going after a few guys who were, at best, taking orders from Osama bin Laden the best way to protect American lives? When this trial is over, the Saudi millionaire, who has been indicted as the ringleader of the Kenyan and Tanzanian embassy bombings, will still be in Afghanistan, snug under the ruling Taliban''s protection.

The recent split verdict in the Netherlands trial of two Libyans charged in the bombing of Pan Am Flight 103 also exposed the limitations of using law enforcement to combat terrorism. While the murder conviction of Abdel
Baset Ali Megrahi, a Libyan intelligence agent, may have given some solace to victims'' families, the conviction did nothing to punish, or even directly point a finger, at Libya''s leader Col. Moammar Gadhafi.

So, what''s to gain? Maybe strict rules of evidence and burdens of proof are niceties that we can''t afford in the real, violent world of international terrorism. Maybe men like bin Laden and Gadhafi should be dealt with by different standards.

Yet a little law can go a long way. First, it has intelligence-gathering benefits. Our intelligence agents can''t simply show up at an unadvertised terrorist meeting. Lawyers, however, can offer deals, provide protection, make plea bargains and reduce sentences in an attempt to get information that we have no other way to get.

The African embassy trial has already provided new and useful information.

Jamal Ahmed Al-Fadl, a former employee of bin Laden who approached the government with information in exchange for his family''s safety, described a global financial network, naming banks in nations from Sudan to Britain
where bin Laden kept his money. Supposedly legitimate agriculture, construction and transportation businesses are, according to Al-Fadl, fronts for terrorist activity. A series of guest houses, military camps and offices provide training for bin Laden''s army. Similar tips may come from Ali A. Mohamed, a former sergeant in the U.S. Army who has
admitted to scouting out the American Embassy in Nairobi for bin Laden. He is also expected to testify for the prosecution in exchange for a guilty plea and a reduced sentence.

The embassy trial is proof that terrorist groups can be infiltrated, maybe not by spies but by lawyers manipulating the weak links of any secret organization-those who get caught, who fear for their lives, who are tired of running or who want something in return.

Just as importantly, fighting terrorism through law enforcement sends an important message to the world-and to ourselves. In the political debate over terrorism, there is often an implicit assumption that constitutional and legal norms may be nudged aside so democracy can be preserved. There is something about terrorism-the secrecy, the surprise, the fear of weapons of mass destruction-that makes us particularly paranoid, even though this kind of violence is, in statistical terms, a relatively negligible risk for most Americans. This case reminds us that America need not
tamper with its legal order to stop terrorism.

While some may argue that our legal regime is too defendant''s-rights sensitive, the law rarely hinders our fight against terrorism. America''s intelligence agents already are subject to few restrictions when working abroad. The judge in the embassy-bombing case appeared to loosen these standards even further when he ruled that prosecutors could admit
statements given overseas by the defendants, even though they had no lawyers.

The only hard-line rule that clearly applies is our prohibition against assassinations. Beyond that, and some loose guidelines regarding the use of informants who may be human-rights violators, American intelligence and national-security agents are relatively immune from the constitutional standards applicable at home.

Unless, of course, they seek to bring that information to court. Then, questions about how information was obtained and the veracity of our intelligence will be subject to the rules of evidence and cross-examination.

This is not necessarily bad. In the Pan-Am 103 trial, the CIA was brought to task by Scottish judges for depending on unreliable or coerced witnesses and for paying off individuals whose testimony was, upon examination, clearly faulty, if not fabricated. These missteps may have led to the acquittal of the second Libyan in the trial.

What''s more, our emphasis on law enforcement does not eliminate diplomatic and military options. While the U.S. Attorneys office in New York was indicting bin Laden in the embassy bombings, for example, President Bill Clinton ordered the bombing of sites in Afghanistan and Sudan suspected of supporting bin Laden''s efforts.

While a guilty verdict in the case may avenge the loss of innocent lives in the embassy bombings, it won''t rid us of international terrorism. Nor will it even do anything to address terrorism''s root causes: poverty, political
instability and religious intolerance. What it does provide, however, is a modest step toward the ultimate goal: countering emerging threats without abandoning the very ideals that we''re fighting to preserve. That, in the end, is a perfectly American attitude.

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Juliette Kayyem is executive director of the John F. Kennedy School''s domestic preparedness program at Harvard University.