There are two articles in the current New York Times about the Pakistani terrorist group, Lashkar-e-Taiba (Army of the Pure). The first article details alleged ties between that group, the Pakistani Inter-Services Intelligence (ISI), and the Mumbai attacks. The second article covers allegations that the National Security Agency (NSA) conducted warrantless surveillance on northern Virginia spiritual leader Ali al-Timimi, who had ties to Lashkar-e-Taiba and who encouraged people to travel to Pakistan for training. Apparently, the government used illegal wiretaps to build a legal case against al-Timimi and violated rules of discovery in his trial to cover-up their crime.

I can’t think of a starker example of the tension between the desire to keep Americans safe and the desire to protect Americans’ civil liberties. If we are to believe the early reports from Mumbai, Lashkar-e-Taiba is responsible for killing nearly 200 innocent Indian and western civilians in cold blood. This is a giant escalation over what Lashkar-e-Taiba has done in the past, and it wasn’t clear that they would carry out large-scale attacks on foreign soil when the NSA decided to do warrantless surveillance on al-Timimi:

The scholar, Ali al-Timimi, once a spiritual leader in Northern Virginia and described by prosecutors as a “rock star” in the Islamic fundamentalist world, is now serving a life sentence in federal prison after he was convicted in 2005 on charges of inciting his Muslim followers to commit acts of violence overseas.

Prosecutors described Mr. Timimi as the spiritual mentor to a group of young men in Northern Virginia who were convicted of giving material support in Kashmir to Lashkar-e-Taiba — the separatist group blamed by the Indian authorities for the recent attacks in Mumbai. Several of the Northern Virginia men had received paramilitary training in Pakistan, apparently at the urging of Mr. Timimi, but there was no evidence that they had taken part in any terrorist attacks.

Intelligence work is incredibly difficult. One of the men the Indian government initially arrested in the aftermath of the Mumbai attacks turned out to be a double agent who had penetrated the cell, and even bought phone cards for them. Unfortunately, it appears the double agent didn’t penetrate deeply enough to know the time and place of the coming attacks. When you have a ‘spiritual leader’ operating on your home soil who has connections to a prominent and lethal terrorist organization, it certainly is prudent to keep an eye on them. It may be difficult to prove probable cause in some of these cases, as guilt by association can only go so far in persuading a wiretap judge. After suffering an attack as catastrophic as 9/11, I can definitely sympathize with the notion that it’s better to have the intelligence than to not have it because you couldn’t provide enough probable cause for a warrant.

But I want to make a few observations about this. First, the proper way to go about handling this problem is try to rewrite the laws to make whatever you want to do legal. Second, if you find there are certain restrictions in the law that are undermining national security, you can make the decision to violate the law for the purposes of intelligence. But if you do this, you need to accept two repercussions. You have to be willing to throw yourself on the mercy of the prosecutor and jury if your crime ever comes to light. If you think they would understand your motivation, fine, but it’s a risk you take. Additionally, you cannot bring illegally obtained intelligence into a court of law and use it to try to gain a conviction. If you are going to violate someone’s rights to gain intelligence on them, the most you should be able to do is to deport them.

We can write laws that allow for the government to use classified evidence in deportation proceedings. I’d much rather open the door for some abuse of the deportation process than do the same in the criminal courts. The Bush Administration erred when it developed its extra-judicial procedures (warrantless surveillance, enemy combatants, torture, Guantanamo, military commissions, etc.). Yet, some of their motivation was valid and will still present a quandary for the Obama administration. As a purely political matter, most people would be outraged to see al-Timimi’s conviction overturned because the government hid the fact that they built their case on illegally-obtained intelligence. After seeing a terror-group associated with al-Timini kill so many civilians in Mumbai, most people will be glad the government was on the case here five years ago. But our rights are protected in the Constitution precisely because there will often be times when their protection is not politically popular.

We can simultaneously protect our physical safety and our human rights, but we have to have political leaders with wisdom. I think we have that now. But it won’t last. It is best to revise our laws to account for the threat of terrorism and the even greater threat to our rights.