One of the major objections to the idea of trying KSM here in the US is that it could allow intel to fall into the hands of the terrorists – intel to which they would not already have access. And the biggest example of this that is used is “200 names.”
200 names of unindicted co-conspirators, a list of which was provided by Andrew McCarthy, then prosecutor of the Blind Sheikh, Omar Abdel-Rahman. Within ten days it made its way to (among others) Osama bin Laden. And much is made of the fact the letter was part of the evidence used in the trial of the man accused (and convicted) of bombing the US Embassies in Kenya and Tanzania.
OK, deep breath time. Fact one. McCarthy makes note of this as part of his example, and fails to note the rest of the story. For example, everything that was requested by discovery was SUPPOSED TO BE reviewed by both FBI and CIA (as this had international intel elements), and possibly other agencies. The review was to determine if this information was classified. Now, McCarthy says he wrote the list and turned them over, implying it wasn’t vetted. This may or may not be true. EITHER he screwed up and acted without running things through appropriate channels, in which case that list is his personal fault, OR it was vetted and determined not to be classified.
Fact two. EVERYTHING is potentially useful for intel analysis. I’m presently unemployed, and it’s been over a decade since I’ve seen anything officially classified above For Official Use Only (FOUO). Even so, I have pieced together things I _KNOW_ were classified secret or higher from open source information. Most intel analysts know this. In WWII there were entire departments who did nothing but read and analyze the newspapers and public announcements of the enemy just to glean critical information — and a lot could be found that way. (A surge in marriages meant more soldiers were there, for example. Human nature being what it is, the surges tended to happen either when they were about to leave or when they were on leave. Just one little piece. On the other hand… Patton spent a period of time twiddling his thumbs doing nothing while D-Day prepped because of how he was being tracked via newspapers – misinformation exists as well.)
What the list told Al Qaeda was that something had happened to make these people suspects – they’d tripped a trigger. It said some of their people were now suspected of being their people. It told them that others hadn’t made THAT list – though there might be other lists. It told them people who were associated who were not their members, and gave them possible recruits. That’s a lot, seen written like that.
And I guarantee you that if it passed across the desks of FBI and CIA reviewers before approval those things were considered. See, there’s this game in intel that comes across as a joke in many movies. “I know that you know that I know that you know…” So, for a short period every one of those names was watched, and they were flagged for review and notice for much longer. I suspect – not know, but suspect – that this is one reason Ghailani was picked up. He left the US rapidly soon after the list was handed over.
Theoretically, if we held the trials in absolute secrecy we could control all the intel. But if we did that… what happens if we discover an innocent man? What is to stop adding innocent but problematic people to these trials? The answer – from a long history of human experience – is nothing.
200 names – that we KNOW they know, and which were released after considering that – is more than worth keeping true to the principles of our nation. That ALL MEN are entitled to the benefits of our noble experiment; that all men have the right to fair and open trial that allows them to face their accusers. We are not the bad guys. We should not allow them to win by becoming just like them. In the end 200 names isn’t that big a deal.