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As the tenth anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus. The event that “changed everything” did turn out to change Washington in ways more startling than most people realize. On terrorism and national security, to take an obvious (if seldom commented upon) example, the confidence of the US government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts.
If, in fact, we are a “nation of laws,” you wouldn’t know it from Washington’s actions over the past few years. Nothing spoke more strikingly to that loss of faith, to our country’s increasing incapacity for meeting violence with the law, than the widely hailed decision to kill rather than capture Osama bin Laden.
Clearly, a key factor in that decision was a growing belief, widely shared within the national-security establishment, that none of our traditional or even newly created tribunals, civilian or military, could have handled a bin Laden trial. Washington’s faith went solely to Navy SEALs zooming into another country’s sovereign airspace on a moonless night on a mission to assassinate bin Laden, whether he offered the slightest resistance or not. It evidently seemed so much easier to the top officials overseeing the operation—and so much less messy—than bringing a confessed mass murderer into a courtroom in, or even anywhere near, the United States.
The decision to kill bin Laden on sight rather than capture him and bring him to trial followed hard on the heels of an ignominious Obama administration climb-down on its plan to try the “mastermind” of the 9/11 attacks, Khalid Sheikh Mohammed, or KSM, in a federal court in New York City. Captured in Pakistan in May 2003 and transferred to Guantánamo in 2006, his proposed trial was, under political pressure, returned to a military venue earlier this year.
Given the extraordinary record of underperformance by the military commissions system—only six convictions in ten years—it’s hard to escape the conclusion that the United States has little faith in its ability to put on trial a man assumedly responsible for murdering thousands.
And don’t assume that these high-level examples of avoiding the court system are just knotty exceptions that prove the rule. There is evidence that the administration’s skepticism and faint-heartedness when it comes to using the judicial system risks becoming pervasive.
Pushing Guilt Before Trial
Needless to say, this backing away from courts of law as institutions appropriate for handling terrorism suspects began in the Bush-Cheney years. Top officials in the Bush administration believed civilian courts to be far too weak for the “Global War on Terror” they had declared. This, as they saw it, was largely because those courts would supposedly gift foreign terrorist suspects with a slew of American legal rights that might act as so many get-out-of-jail-free cards.
As a result, despite a shining record of terrorism convictions in civilian courts in the 1990s—including the prosecutions of those responsible for the 1993 attempt to take down a tower of the World Trade Center—President Bush issued a military order on November 13, 2001, that established the court-less contours of public debate to come. It mandated that non-American terrorists captured abroad would be put under the jurisdiction of the Pentagon, not the federal court system. This was “war,” after all, and the enemy had to be confronted by fighting men, not those sticklers for due process, civilian judges and juries.