If one ever takes place at all, that is:
The alleged masterminds of the September 11th attacks are still sitting in the Guantanomo Bay prison and have yet to face trial after two decades.
Khalid Sheikh Mohammed and four other suspects may never get a trial date.
“One of the most important issues in the case is how the torture of these men is going to ultimately affect the trial,” said James Connell, the lawyer representing one of the suspects. …
No trial date has been set and it’s unclear if it will ever take place.
What went wrong? Military commissions began forming almost immediately at Guantanamo Bay, and both Congress and the federal courts began dismantling them almost as quickly as they could be rebuilt. The Obama administration tried to take steps to transfer the 9/11 defendants and others at Gitmo to the federal courts, eventually losing that fight to those who argued that the men committed acts of non-state terrorist war. Jurisdictions seemed questionable, and above all the questions surrounding their interrogation made transfer to civil courts impossible.
At the core of the problem is the slow slide back into making terrorism a law-enforcement issue rather than a national-security issue, Andrew McCarthy writes today. Americans are not comfortable with the idea of being at war, which is one reason why the military commissions have failed in their mission, but it’s not the only reason:
Second, there is the travesty otherwise known as the prosecution of the 9/11 terrorists. It is back in the news this week. The five surviving al-Qaeda jihadists believed to be most culpable, led by Khalid Sheikh Mohammed, have still not been tried, two decades after the attacks, and more than 15 years after their capture. The military commission is now before its fifth judge. Though pretrial proceedings resumed this week after the latest delay (18 months, due to COVID-19), the trial is not imminent. Maybe the start of next year . . . maybe a few months later . . . who knows? …
Even before 9/11, a few of us who’d been involved in terrorist prosecutions urged that the jihad was a national-security challenge, not a crime problem, as it had been regarded in the Clinton years. It was national-security insanity to apply courtroom rules when the jihadist enemy was making war on the United States, from faraway foreign havens where our agencies cannot operate and the writ of our courts does not run.
Answering bombs with subpoenas was a provocatively weak response. Vesting wartime enemies with civilian due-process protections, moreover, required disclosing our intelligence to them, thus imperiling our deep-cover sources and increasing the likelihood of more terrorist attacks.
George W. Bush succeeded in convincing Americans that this was war, and that the time for subpoenas and cross-examinations against foreign terrorism was over. For a while, anyway. The success of the “forward strategy” in Afghanistan in tamping down al-Qaeda and its ability to launch subsequent attacks dulled the sense of war that 9/11 made raw and real. Subsequent larger-scale attacks in other Western nations would sometimes remind us of the nature of the fight, but the US mostly experienced domestic ad-hoc or so-called “lone wolf” attacks, and those got handled (correctly) in federal civilian courts — and, as McCarthy notes, handled well. But those attacks not only took place in the US, they originated here as well — unlike 9/11, USS Cole, the twin embassy bombings of 1998, and so on.
Twenty years later, the Biden administration wants to pretend that the war and the threat is over. Instead, we get glib talk about “over the horizon” capabilities, which we had prior to 9/11 as well, and the supposed end of the “forever wars.” Wars end when both sides stop fighting them, however, not when one side has decided it’s bored and wants to take its ball and go home. The enemy can go there too — and did, twenty years ago.
The military commissions never got off to any kind of start, thanks in no small part to meddling from federal court and Congress. McCarthy also partly assigns blame to “the hostility of the organized bar,” but again, that’s not the entire problem either. After the short-term focus Bush provided faded, there has been no unity on the need to approach this as a war rather than a law-enforcement problem. That has left the military without enough support to put together a coherent plan for the commissions:
But the remorseless fact, for those of us who supported the commissions, is that the system has not worked. Unlike the civilian justice system, it is not on a sound enough footing, with a deep foundation of public acceptance, to withstand relentless challenges. The civilian courts have proved far more competent. The judges have presided over complex, contentious trials with skill; they’ve imposed appropriate sentences; and they’ve rigorously reviewed the outcomes on appeal to ensure their fairness and firmness.
Over the years, I’ve posited that the system for prosecuting terrorists should be overhauled, replaced by a national-security court that would combine the best features of both military and civilian justice. Such a new tribunal would be tailored to the uniqueness of the foreign terrorist threat: jihadists who camouflage themselves as ordinary members of the societies they attack. There has not been an appetite to construct a better model, even as the weaknesses of the current systems become more pronounced.
To get there, one would have to agree to anything other than the federal civilian courts as a venue. Opponents of Gitmo and military commissions — including the “organized bar” — have invested too much time and energy in that direction to change positions at this point. The same is still probably true for those who see military commissions as the proper venue for those who make war on us from foreign shores, especially those of us who recall the failures of the arrest-warrant approach to Osama bin Laden and al-Qaeda during the years prior to 9/11.
That paralysis is why KSM and his sick, twisted cohort still haven’t gotten a trial date. And why they likely never will.