Beyond Interrogations: An Analysis of the Protection Under the Military Commissions Act of 2006 of Technical Classified Sources, Methods and Activities Employed in the Global War on Terror

• Author: Captain Nikiforos Mathews
• Pages: 05

2007] BEYOND INTERROGATIONS 81

BEYOND INTERROGATIONS: AN ANALYSIS OF THE PROTECTION UNDER THE MILITARY COMMISSIONS ACT OF 2006 OF TECHNICAL CLASSIFIED SOURCES, METHODS AND ACTIVITIES EMPLOYED IN THE GLOBAL WAR ON

TERROR

CAPTAIN NIKIFOROS MATHEWS*

"The necessity of procuring good intelligence is apparent and need not be further urged. All that remains for me to add is, that you keep the whole matter as secret as possible. For upon secrecy, success depends in most Enterprises of the kind, and for want of it they are generally defeated . . . ."

- Letter from George Washington to Colonel Elias Dayton, July 26, 17771

The conduct of war, in the most classic sense, is the engagement in armed conflict either between states or within states.2 In such a context, there is typically a recognized hierarchy of enemy actors, a recognized objective of the combatants, and a recognized beginning and end to the hostilities. In contrast, the Global War on Terror (GWOT) is an ongoing conflict involving non-state actors operating in the shadows across national borders. Therefore, "victory" in the classic sense is not attainable, as there is no enemy authority to accept the terms of surrender

and act on behalf of the defeated.3 The present conflict is so rooted in religious fanaticism, and so characterized by decentralized actions, that even if Osama bin Laden himself were to be captured and openly declare a cessation of hostilities, al Qaeda splinter groups, their associates, and their philosophical sympathizers undoubtedly would continue their efforts, perhaps with increased zeal and recklessness fostered by the evaporation of even limited command and control.4 What this means for GWOT-related prosecutions is that, unlike the post-World War II trials at Nuremburg and more recent war crimes tribunals, there will not be an end to the hostilities before the relevant legal proceedings commence. In fact, these proceedings have already begun and there is no end to the hostilities in sight.5

The ongoing nature of the current conflict presents unique challenges in establishing a workable framework under which to prosecute GWOT detainees, particularly when it comes to determining the use and protection of sensitive information in legal proceedings. The prosecution of GWOT detainees has and will continue to require the use of sensitive

information as evidence. More relevant to this article, however, is that much of the prosecution's evidence will have been obtained from sensitive sources, methods, and activities employed by the Government, whether human or technical in nature.6 Against the backdrop of an ongoing conflict, these sensitive sources, methods and activities-i.e., the means of obtaining evidence-used by the counterterrorism7

community likely will not be stale at the time of a detainee's prosecution and, therefore, the disclosure of such means would compromise their future utility.8

This point has not been lost on those responsible for drafting procedural rules for GWOT prosecutions. The most recent effort in this regard is the Military Commissions Act of 2006 (the MCA).9 The MCA's general approach to the protection of sensitive information is largely consistent with the approaches found in the Classified Information Procedures Act (CIPA)10 and in Military Rule of Evidence (MRE) 505,11 the federal statute and military evidentiary rule upon which much of the MCA's relevant provisions are based. However, the MCA

also specifically protects from disclosure classified12 sources, methods and activities through which admissible evidence was obtained.13 The protection of sensitive counterintelligence means is not specified in either CIPA or MRE 505. As a result, the language of the MCA that provides this protection has come under attack as an instrument the prosecution may use to deny an accused his due process rights, particularly by restricting his ability to object to the admissibility of evidence obtained through questionable interrogation tactics.14 Yet this myopic focus on interrogation methods has overshadowed what has become truly important to the counterintelligence community in this conflict and what was undoubtedly on the minds of the drafters of the MCA: the protection of technical means used to gather intelligence by penetrating terrorist communications and, especially, their finances.

This article tracks the development and content of the MCA as it relates to sensitive information, and examines whether the MCA's protection of technical counterintelligence means would withstand judicial scrutiny. Section I of this article provides background on how the MCA came to be and how it ultimately deals with the use and protection of sensitive information in military commission proceedings. Using the al Qaeda financial network as a vehicle, section II discusses the types of technical sources, methods and activities employed in the

GWOT against terrorist networks that the MCA intends in large part to protect. This section further highlights the importance of preventing the disclosure of such means. Finally, section III argues that, assuming proper vigilance by the military judge, the protection afforded under the MCA to technical counterintelligence means used to obtain incriminating evidence should not negatively impact the accused's defense. As such, these protections should withstand judicial scrutiny.

1. The Development of the Military Commissions Act of 2006 and Its Approach to Sensitive Information

   Shortly after the attacks of September 11th, the President issued a military order establishing military commissions to prosecute suspected GWOT terrorists for law of war violations and directing the Secretary of Defense to issue the necessary orders and regulations for these commissions.15 In March 2002, the Pentagon responded to this directive by issuing procedural rules for the commissions.16 Thereafter, the General Counsel of the Department of Defense issued Military Commission Instructions specifying the crimes and elements of offenses to be prosecuted and providing administrative guidelines for the conduct of proceedings.17 When it came to sensitive information, these rules and instructions broadly delineated what was to be safeguarded in proceedings, creating the concept of "protected information,"18 and provided sweeping rules to prevent the disclosure of such information.19

   In 2006, the United States Supreme Court held in Hamdan vs. Rumsfeld20 that military commissions, as then constituted, were not valid.21 However, the Court left open the door for the President to obtain express authorization from Congress to employ the proposed military

   commissions and for the President and Congress to address the Court's concerns over the rules governing these proceedings.22

   In response to the Court's invitation in Hamdan to salvage the use of military commissions to try GWOT detainees, the President engaged Congress in an intense discourse intended to specifically authorize the President to create these commissions and to establish new procedural rules governing their proceedings. Following several key compromises, the Senate passed the bill that ultimately became the MCA on 28 September 2006.23 Among the hotly-debated points on which the President and Congress reached compromise was the treatment of sensitive information in legal proceedings.24 The primary reason for

   such heavy negotiation on this topic was the harsh criticism of the expansive protection afforded to sensitive information under the Pentagon's procedural rules.25 In particular, the legislators recognized the importance of allowing the accused to see the evidence brought against him in a manner that would withstand future Supreme Court scrutiny. Among other things, this would necessitate eliminating the Pentagon's procedural rules requiring the exclusion of the accused (and his civilian defense counsel) from portions of the proceedings that dealt with protected information.26 At the same time, however, they struggled to devise a process that would enable the prosecution to admit evidence without exposing the sensitive sources, methods, or activities used to obtain that evidence to suspected terrorists, commission members, or the

   public at large, if such disclosure would be detrimental to national security.27

   To begin with, the drafters of the MCA spurned the Pentagon procedural rules' concept of "protected information," deciding instead to limit protection to "classified information."28 This greatly simplified the universe of information that could benefit from protection. The current Government information classification system was established in March of 2003 under Executive Order 13,292 (EO 13,292)29 and sets forth the process through which information is to be classified and handled.30

   Among other things, it requires that information be classified according to its "sensitivity," or the degree to which the public disclosure of that

   information would damage national security.31 By embracing the objective and recognized standard of classified information, the MCA provided a clear scope of information that would be afforded protection.

   In addition to clarifying that only classified information is eligible for protection, the MCA established specific procedures for protecting classified information in military commission legal proceedings. As noted above, the MCA's provisions regarding the treatment of classified information were largely modeled after CIPA and MRE 505, a military evidentiary rule which itself is modeled after CIPA. The provisions of CIPA and MRE 505 do not apply to the MCA, as they apply to federal court proceedings and military law proceedings, respectively.32

   Nevertheless, before turning to the MCA itself, a brief overview of CIPA and MRE 505 procedures is helpful in understanding the relevant framework of laws existing at the time the drafters of the MCA established its military commission procedures.

   According to the legislative history...