Posted by Rodney G. Graves on 10 September, 2009 at 6:00 am. Be the first to comment!


Vindication of the effectiveness of Warfare over Lawfare, and a triumph for the Terrorist Surveillance Program.

The ambivelent news is that The UK recently managed to convict a group of three terrorists for attempted terrorism:

Airline terror trial: The bomb plot to kill 10,000 people
Three British Muslims have been convicted of planning a series of co-ordinated suicide bomb attacks on transatlantic airliners, which could have killed up to 10,000 people.
By Duncan Gardham, Security Correspondent

The al-Qaeda cell plotted to cause mass murder by detonating home-made liquid explosives on board at least seven passenger flights bound for the US and Canada. The plot had the potential to be three times as deadly as the 9/11 attacks of 2001.

The convictions followed Britain’s largest counter-terrorism operation and two criminal trials which, in total, cost an estimated £60million.

All three men convicted on Monday had been found guilty at an earlier trial last year of conspiracy to murder, but prosecutors said it was vital to secure a conviction on another charge of conspiring to blow up the aircraft in order to prove that the threat to air traffic was genuine.

How, you ask, is this ambivalent news? It took two trials.

Part of the reason is why lawfare (as apposed to war crimes tribunals) is a bad idea.

Western Courts of Law, being primarily concerned with their own citizens, make it very difficult to introduce secret evidence. From a civil liberties point of view, and with regards to one’s own citizens, this is a good thing.

War Crimes Tribunals, charged with enforcing the Customary Laws of Warfare, are more concerned with discouraging violations of the Customary Laws of Warfare and have no bars against secret evidence.

The key to the successful second prosecution of the three terrorists in this case were e-mails electronically intercepted by the National Security Agency. The NSA was, as a matter of policy and law, interested in frustrating the plans of the terrorists while preserving the source of that intelligence.

NSA-Intercepted E-Mails Helped Convict Would-Be Bombers
By Kim Zetter

The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain’s Channel 4.

The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.

That trial resulted in the men being convicted of conspiracy to commit murder; but a jury was not convinced that they had planned to use soft drink bottles filled with liquid explosives to blow up seven trans-Atlantic planes — the charge for which they were convicted this week in a second trial.

According to Channel 4, the NSA had previously shown the e-mails to their British counterparts, but refused to let prosecutors use the evidence in the first trial, because the agency didn’t want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was al Qaeda’s director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.

The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA’s change of mind occurred after Rauf, a Briton born of Pakistani parents, was reportedly killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.

Students of history will recognize this as the same dilemma which confronted Prime Minister Churchill when the Allies intercepted German messages presaging the fire bombing of Coventry. The only reason the intelligence was subsequently released in this case was that the source had been eliminated by military action, thus obviating the clear advantages of protecting the source of the intelligence.

Wired’s article continues:

Although British prosecutors were eager to use the e-mails in their second trial against the three plotters, British courts prohibit the use of evidence obtained through interception. So last January, a U.S. court issued warrants directly to Yahoo to hand over the same correspondence.

It’s unclear if the NSA intercepted the messages as they passed through internet nodes based in the U.S. or intercepted them overseas. If the former, it’s possible the interception was part of the Bush administration’s warrantless surveillance program — a surveillance program aimed at intercepting foreign correspondence as it passed through domestic internet switches. Such interception was previously illegal unless conducted with a warrant from the Foreign Intelligence Surveillance Court. After news stories revealed that the NSA was conducting such surveillance without a warrant, however, Congress legalized such collection activities last year in its passage of the FISA Amendments Act.

(Hat Tip: The Lede)

Hat Tip: Gabriel Malor at Ace’s Place, who comments: “…Democrats wished they hadn’t.”

Glen “Instapundit” Reynolds twigs to the same story via Orrin Kerr at Volokh “…who doubts this story will get the attention it deserves.” Of course not, it doesn’t fit the narrative.

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