The Intelligence Community and defense contractors who hold intelligence contracts will be watching the trial of Khalid Sheik Mohammed (KSM) particularly closely. In the Military Commission system, evidence that is vital to national security can be withheld from the defendant; though his security cleared counsel have access to the information. This allows the federal government to protect methods and sources from individuals accused of conducting operations against US security interests.
In a civilian court, any evidence available to the prosecution must also be made available to the defense. This could require the prosecution to provide information on intelligence sources and methodologies or not using any evidence gained through those methods.
In an announcement made on November 13, 2009, that has caused a significant amount of outcry within the US, Attorney General Eric Holder announced recently that KSM and several co-conspirators will be tried by a civilian court in New York City. Critics of the decision have raised a number of concerns, including physical security, the ability of KSM to receive a fair trial and the possibility that intelligence sources and methods could be revealed to our enemies.
KSM is the self-confessed mastermind of the 9/11 attacks against the World Trade Center in New York City. Mr. Holder claims that by trying KSM in New York, the US will demonstrate the American system, where the rule of law is a firm foundation. Defense attorneys for KSM have said he will use the court case as an opportunity to speak out against the US.
Sources and methodologies tend to be some of the most closely guarded secrets in the Intelligence Community. Even in documents that are later declassified, source names or personally identifiable information is often redacted. Intelligence professionals claim that this allows them to recruit new information sources, who can be assured of their anonymity.
The US has already admitted to using some their cyber capabilities to fight terrorism. According to an article in the National Journal, the NSA under the Bush administration used advanced cyber capabilities to hack insurgent’s computers and cell phones to lead them into traps. If such information had been exposed during the height of the counterinsurgency effort in Iraq, the effort would have been less successful. Insurgents would not have trusted the security of their communications and either treated any messages with skepticism or moved to a new medium of communication. The upcoming trial could expose some important intelligence collection methods that could keep the method from being exploited in the future.
According to former attorney general Michael Mukasey, the trial of Omar Abdel Rahman (the ‘blind sheik’), should serve as a warning to the government on the dangers of a criminal trial in terrorism cases. During the trial, prosecutors were compelled to present the defense with a list of un-indicted co-conspirators, named among them was Osama bin Laden. “Within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to the case had been discovered.”
Additionally, the trial of Ramzi Yousef for the 1993 World Trade Center bombing, revealed to terrorists that their communications system was compromised by US intelligence.
Despite the outcry against the Military Commission system set up under the Bush administration, it is not without precedent. During World War II, Germany landed eight saboteurs on the US coast in New York and Florida. All were captured, tried before a Military Commission and six were executed.
Attorney General Holder claims that individuals who attack US military targets, such as the Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole attack, will be tried by Military Commissions. Anyone attacking US civilian targets will be tried in a civilian court.
The potential for the compromising of intelligence sources and methods could have a significant impact to the intelligence community. In revealing this information, the US will allow terrorists and other US enemies the opportunity to learn valuable and actionable information on US intelligence. This will place the US at a significant disadvantage and will require innovative thinking to develop new methods for defeating our enemies.
One thing is certain. No matter the outcome of the trial, KSM will never be released.