June 9, 2007: The American Senate Judiciary Committee has voted to rescind certain portions of the Military Commissions Act - a move that will draw few headlines, but which holds the potential to do great damage to intelligence agencies, which are vital in the war on terror. Should the practice of giving terrorists access to federal courts be resumed, the Department of Defense would face the choice between protecting the means of gathering intelligence and the sources of intelligence, and letting terrorists go free, or placing the information gathered on the record, and risk aiding terrorists' counter-intelligence efforts.

This is really not a surprise. Many in the new Democratic Party congressional leadership opposed the Military Commissions Act, echoing complaints from human rights groups like the Center for Constitutional Rights and Amnesty International. The Democrats are now tossing this over to their supporters, in essence, seeking to score political points from their supporters - and get positive press from the mainstream media.

The problem, of course, is that in the past, criminal trials have led to intelligence being compromised. In the 1995 trial of Omar Abdel Rahman, the government's evidence was turned over to his attorneys. At least one of the documents handed over in accordance with rules of discovery ultimately found its way to an al-Qaeda headquarters in the Sudan. That document contained a list of people who were on the government's radar screen - and thus alerted al-Qaeda to the possibility of surveillance told them who we were interested in.

This is a bigger deal than it might sound like. If you know what someone else knows about you, it helps you to figure out how they might have discovered the information. That enables you to take countermeasures, be it feeding disinformation through a source you know is compromised, or by making sure that the snitch is tortured (for information on his intel connections) and killed. Compromising methods of gathering intelligence, and the sources of intelligence, also creates a chilling effect. If a source wants to be extracted, intelligence he might have gathered in the future is lost. The same loss of intelligence happens when a source stops cooperating for fear of exposure, which happened in 1995 after then-Congressman Robert Torricelli burned a CIA source. Cooperation with other intelligence agencies will also suffer - as they act to protect their methods and sources from being exposed.

The compromising of intelligence sources and methods of gathering information also makes it more likely that plotted attacks will succeed. A terrorist cell that is conscious of operational security as the result of leaks, and which is dealing with fewer potential snitches, is more likely to evade notice. In essence, they have a better chance at getting lucky - and a terrorist cell planning an attack only needs to get lucky once. The terrorists planning the attack on Fort Dix are the exception - and the next group of terrorists is not going to take their videos to the local Circuit City or Best Buy.

On the contrary, when terrorist cells do not think someone is listening, they are more likely to screw up and attract attention. The more that informants believe they will be protected, the more likely they are to keep snitching on the bad guys. This means there is a better chance for the cops and FBI to get alerted. Considering that these agencies are largely reactive, they can use all the informant tips they can get.

When it comes right down to it, a major battle in the war on terror will be fought in Washington. Al Qaeda could easily end up a big winner by gaining invaluable assistance in counter-intelligence, assistance that the DOD will be forced to provide unless they want terrorists to go free. That is a choice between two very bad options. - Harold C. Hutchison ([email protected])