TCS Daily

Losing While Winning

By J. Michael Barrett - May 11, 2006 12:00 AM

The trial of convicted al Qaeda member and 9/11 conspirator Zacarias Moussaoui drew to a close last week with his sentencing to life in prison for his apparent supporting role in the death of Americans in the September 11 attacks. Whether or not the final verdict comes to be seen as a victory for the prosecution or the defense, the sad fact is that we Americans have collectively lost critical time in furthering homeland security due to the slow and laborious processes that handled this court case -- a case which, after all, dates back to Moussaoui's indictment in December of 2001.

This fact is not a criticism of the judge, jury, prosecutors or defense attorneys, each of whom fulfilled their individual duty to responsibly handle an important and complex case revolving around one of the greatest tragedies in American history. But it is an indictment of the process itself, which took more than four years -- four years during which key federal, state and local law enforcement agents have been prohibited from discussing the case and when lessons that could have been learned were not because disclosure of certain facts could have hurt the government's case. Worse, during that entire time many of law enforcement's most knowledgeable minds on homeland security and terrorism were tied up in the case and thereby precluded from conducting other investigations or helping in the critical process of updating the structures of our domestic law enforcement agencies from a mindset of prosecution to one of terrorism prevention.

In addition, even though some of the basic facts of the case were released for law enforcement use, their sensitive nature has in large part precluded their being studied, discussed, probed and analyzed by the academic and research centers that directly serve the law enforcement community. Moreover, it has negatively impacted the ability of the private sector to take a more active role in knowing what warning signs their security personnel should be trained to look for -- despite the fact that the private sector owns and operates the vast majority of the critical infrastructure which many experts fear the terrorists will target next, and also that it was a flight instructor at a private flight school that first alerted officials to Moussaoui's suspicious behavior.

Examples of the information that analysts could have used in developing new tradecraft for recognition of possible terrorist patterns might include Moussaoui's personal behaviors (travel, eating and spending patterns), pre-operational terrorism-related activities (when and where he met with fellow conspirators, possible weapons training, sources of radical religious indoctrination), and also the efficacy of various law enforcement techniques (how he responded to various interrogation techniques or solitary confinement). Such information can be analyzed and developed into pattern recognition and other law enforcement tools that would be useful in ferreting out other terrorists who may already be here among us. If we are to face down and defeat this ruthless enemy and intercept the dreaded next attack on our homeland we must devise a speedier judicial process that allows for the more timely exploitation of lessons learned from ongoing cases, in turn getting this information to all the many public and private sector eyes and ears that might be the ones who come across the next terrorist-in-waiting.

One reasonable, measured solution to this quagmire of untimely judicial processing is to maintain legal rights guaranteed by the Constitution but have Congress enact statutory reforms to the Rules of Criminal Procedures that enable terrorism-related cases to be 'fast-tracked' to the front of the court docket and given priority based on national security grounds. Alternatively, Congress could consider confining terrorism-related cases to the confines of a parallel, "separate but equal" court system that is granted preferential treatment in resolution of scheduling, appeals, and other procedural matters. The issue here is one of speed, and such process changes would more appropriately balance the rights of the accused with the legitimate self-defense needs of a society at war. Whether or not, as has been suggested, such courts also should use professional juries better versed in international law, terrorism, Islamic culture, or any other relevant matters is a decision requiring careful deliberation by judicial scholars and government authorities.

J. Michael Barrett is the Harbinger/ICx Technologies Fellow in Homeland Security at the Manhattan Institute's Center for Policing Terrorism and a former terrorism analyst for the Special Operations Branch of the Chairman of the Joint Chiefs of Staff and co-author of the forthcoming book Securing Global Transportation Networks from McGraw Hill (October 2006).


TCS Daily Archives