Why Trials Matter in the War Against Terrorism

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SAYYID AZIM/AP

The Nairobi embassy blast killed more than 200 people

The Lockerbie trial had some in the intelligence community questioning the usefulness of the courts as a weapon against terrorism. What about the New York trial of four Bin Laden associates over the East Africa embassy bombings?

Massimo Calabresi: The main issue in the New York trial is that the judge has accepted into evidence statements made by some of the accused in circumstances where they hadn't been informed of their Miranda rights, and had no lawyers present. So it seems likely that no matter what the outcome of the trial, there will be an appeal to a higher court. What they're running into is the problem of interrogations carried out elsewhere, by non-U.S. organizations, coming into conflict with the rigorous standards demanded by U.S. courts.

So will this underscore questions about the usefulness of the courts in the battle against terrorism?

Well if you looked at the courts on a stand-alone basis, that might be the case. But legal proceedings are most useful as an adjunct to diplomatic pressure. Putting terrorists on trial gives the U.S. something to ask for when putting diplomatic pressure on states that have been backing terrorists. It worked quite well in the Libyan case, by setting a specific agenda for Libyan cooperation around which the U.S. could build an international consensus. It gave the Libyans a clear road map of what to do if they wanted to ease diplomatic pressure.

In the case of Ghaddafi, it worked well for him, because cooperating with the court eventually got him a suspension of sanctions and warmer relations with the Europeans and Arab world. And, of course, the pressure that preceded the trial helped bring about a situation where Libya is no longer a state sponsor of terrorism. So the Lockerbie case shows that as one arrow in the quiver of diplomatic pressure, a court case can in fact be a useful weapon in the fight against terrorism.

It may be different matter when you're talking about Osama Bin Laden. But even then, it may ultimately help bring pressure to bear on the Taliban, which is protecting Bin Laden, but which also seeks to be recognized as a legitimate government.

The best evidence against terrorists will always come from spies or turncoats. But aren't intelligence agencies reluctant to expose such "assets," in a trial, which tends to render them useless in the ongoing battle with the terrorist organizations they'd come out of, or had infiltrated?

The intelligence community obviously weighs the value of securing a conviction against the value of keeping in place someone who is cooperating with the U.S. And they almost always tend towards keeping them in place until they've exhausted their usefulness, before sending them into a courtroom.

So a trial, in some ways, is an afterthought for those engaged in the ongoing war against terrorism?

Perhaps in terms of the short term prevention of terrorism, in which the proactive arms of the intelligence community are in the front line. But when it comes to long-term prevention, 'black ops' and military interventions are not good tools. Reagan bombed Libya, remember, but that didnít stop Ghaddafi sponsoring terrorism. What got Libya out of the business of terrorism was diplomatic pressure. And thatís where the courts fit in.