As Defense Secretary Donald Rumsfeld has observed, weakness is provocative. The fecklessness of meeting terrorist attacks with court proceedings--trials that take years to prepare and months to present, and that, even when successful, neutralize only an infinitesimal percentage of the actual terrorist population--emboldened bin Laden. But just as hurtful was the government's promotion of terrorism trials in the first place. They were a useful vehicle if the strategic object was to orchestrate an appearance of justice being done. As a national security strategy, they were suicidal, providing terrorists with a banquet of information they could never have dreamed of acquiring on their own.
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.
