Time to End the 9/11 Military-Commission Debacle
By ANDREW C. MCCARTHY
February 4, 2023 6:30 AM
Ted Olson is right: A deal in which the remaining defendants plead guilty and agree to serve life in prison is best for all involved.
In rhetoric, there is no greater advantage than the perceived authority of the speaker — and it would be difficult to imagine a more authoritative voice on the legal response to the 9/11 atrocities than Ted Olson.
I could not admire Ted more. He is one of the great lawyers in the United States, and has been for decades. For much of his career, he was a pillar of the sort of Justice Department that now seems a distant memory: the sort that elevated the rule of law above partisan politics.
Olson was the solicitor general of the United States on September 11, 2001, when jihadist suicide-hijacking attacks killed nearly 3,000 Americans. Because of that position in the Justice Department’s upper echelon, and because he most deservedly had the trust of President George W. Bush, Olson was at the forefront of the government’s legal response to the most brutal act of war committed on American soil since Pearl Harbor.
Such responsibilities, daunting as they were, seem almost trivial in comparison to 9/11’s ramifications for Olson’s personal life. As he related in a moving op-ed published in the Wall Street Journal on Thursday, his wife, Barbara Olson, was among the passengers killed by the terrorists when they crashed Flight 77 into the Pentagon. Reading it takes the breath away, even for those of us who were enmeshed in counterterrorism at the time, who had relationships stretching back years with the families of many of the fallen, and who like to think we understand the anguish, though we really can’t:
I remember exactly where I was standing on Sept. 11, 2001, when I heard my wife Barbara’s voice over the phone moments before her plane crashed into the side of the Pentagon. She told me that hijackers had taken over her flight from Washington to Los Angeles, where she was heading for a television appearance. She spent her last few minutes trying to figure out how to stop the unfolding tragedy. The weight of the disaster was overwhelming. It was personally devastating for me and for the thousands of others who lost family and friends that day, and it was devastating for our nation. I knew then that life would never be the same in this country.
He is right: It never has been the same. We are the worse for the events of that terrible day, and there is plenty of blame to go around for that on both sides of the intense debate over the proper role of the justice system in an asymmetrical war against a barbaric enemy. It is blame we share despite our good intentions, and perhaps because we’ve too often failed to credit the good intentions of those with whom we disagreed.
The focus of Olson’s piece is the conundrum we’ve previously discussed here: terrorists who should be put to death but can’t be tried. It should go without saying that he writes as someone who was both personally aggrieved by the attacks and professionally engaged in the government’s response to them. But ever the patriot, he also aims to help Joe Biden out of a bind that is not of Biden’s own making but that only Biden, as the president, can address.
As we’ve observed for months, the Biden administration is struggling to resolve an untenable, infuriating impasse: the inability over 22 years to try, convict, and execute jihadists we know orchestrated al-Qaeda’s 9/11 operation. The president clearly wants to end this debacle through a bargain in which the Justice Department takes the death penalty off the table and the terrorists admit guilt and accept life sentences.
Olson argues that such a deal is “the best the U.S. government can do at this point,” and he’s right.
The detainees were subjected to what the Bush administration euphemistically described as “enhanced interrogation techniques,” and what progressive Democrats label “torture,” a conclusion on which they will brook no dissent (no matter that Nancy Pelosi and other top Democrats were briefed on it in real time). Even if one does disagree with the torture accusation, two things must be stipulated. First, some of the methods used by American officials, and all of them in the aggregate, shock the conscience. Second, even those of us who were open to the argument that exerting extreme physical and psychological pressure on detainees could be justified in a ticking-bomb scenario — i.e., a dire situation in which thousands of people could be killed if a particular piece of intelligence weren’t obtained immediately — could never agree that statements adduced by such methods should be admissible evidence in a trial. Our very understanding of what a trial is would be corrupted beyond recognition by such a development.
Because the detainees were subjected to abusive interrogation techniques, military prosecutors in the commission system that has jurisdiction over the case may not have sufficient evidence to prove that they are guilty of the mass murder they are brazenly proud of orchestrating — and even if that hurdle could be overcome somehow, it is likely the commission would decline to impose the death penalty.
Then there is the “laws of war” problem, which I periodically and inconveniently note as commentators left and right decry the continuing operation of the detention center at Guantanamo Bay and “forever wars.” The laws of war permit detention of enemy combatants only until the conclusion of hostilities; once combat operations are over, detainees must be charged with war crimes or released. Many of the 34 detainees still held at Gitmo (and even more who have already been released) cannot be tried, not just because of the interrogation methods used on some of them but because the evidence against them can’t be exposed without compromising U.S. intelligence-gathering methods and sources. Yet if released, those detainees would likely return to anti-American jihadism.
Critics want the war to be over and Gitmo to be shuttered this instant. Naturally, though, they don’t want to be held responsible for the foreseeable outcome of that scenario: Terrorists who are released will kill more Americans and other innocent people. Still, the law is the law. Olson, again, is correct in saying that detainees who can’t and won’t be charged, and who have been cleared for release, should be transferred to countries willing to take them. If they’ve been cleared, that is a governmental judgment that they are no longer seen as combatants. And if they’re no longer seen as combatants, there is no legal authority to detain them, notwithstanding the risk that they could return to terrorist activities.
Biden has botched many things. He is to be blamed, however, for none of this. The job he has is the world’s toughest because it requires making gut-wrenching, politically fraught calls. If he is to be faulted, it is only for being too craven to take the heat for decisions that are certain to be unpopular with many, if not most, Americans. Thus has the White House tried to deflect responsibility for the entire mess, as if it were solely up to the Defense Department and the military commission to decide what to do — as if the armed forces were not subordinates of the commander in chief.
That is the breach into which Olson is stepping. Now, assuming there finally is a plea bargain to end the 9/11 case, Biden will be able to say that if this resolution is good enough for Ted Olson, it ought to be good enough for you.
And so it should.
Even we who supported the commissions must admit that they’ve been a disaster. Looking back, Olson now believes that they were doomed from the start. I’m less sure about that. I believed, and proposed, that Congress should devise a national-security court for alien enemy combatants — a tribunal that would combine the best aspects of the civilian justice system (in particular, independent Article III judges who had done a commendable job on terrorism cases in the years prior to 9/11) with aspects of the military justice system that made it easier to shield intelligence from our wartime enemies. But there was no appetite for such a court, and forced to choose between two poor fits, I believed the military-commission system, though experimental, would be better than the civilian justice system in which I’d prosecuted terrorists in the 1990s.
And it is here that, while agreeing with his bottom line, I part company with Olson’s critique.
According to Olson, “The established legal system of the U.S. would have been capable of rendering a verdict in these difficult cases, but we didn’t trust America’s tried-and-true courts.” Respectfully, trust in the capacity of our courts to render just, reliable verdicts was never the issue. The Obama administration and top Democrats repeated that talking point endlessly, but it was perfectly obvious that district judges, particularly in the Southern District of New York in the years after the 1993 World Trade Center bombing, did a stellar job presiding over terrorism trials. The outcomes of those cases were just, although I’d note that the bombers of U.S. embassies in Kenya and Tanzania were not executed in their capital case, which under the circumstances they should have been.
The actual objection to the civilian justice system was the mismatch between, on the one hand, the presumptions and due-process requirements of the civilian judicial system, and on the other hand, the exigencies of a hot war against very capable jihadist organizations that were continuing to plot operations against U.S. civilian, political, and military targets.
As I can attest, having had to make discovery in terrorism prosecutions, compliance with due-process standards applicable to criminal trials required providing our enemies with valuable intelligence that made them more lethal. It was irresponsible to do this even back in 1993, when we didn’t have as much experience with such cases — just the one major attack against the World Trade Center in February of that year, followed immediately by an unsuccessful plot to bomb other New York City landmarks. There would be no excuse for continuing to do it once our government went to war against these enemies after 9/11, which itself happened only after a series of deadly jihadist operations: the so-called Bojinka plot to explode U.S. airliners in midflight in 1994 (one tourist killed by a test bomb); the Khobar Towers bombing in Saudi Arabia in June 1996 (19 members of the U.S. Air Force killed); the aforementioned bombing of embassies in eastern Africa in August 1998 (over 200 killed); the plot to bomb Western tourist sites in Jordan in late 1999 (a failed attack); the plot to bomb Los Angeles International Airport on December 31, 1999 (a failed attack); the plot to bomb the U.S.S. The Sullivans in Yemen on January 3, 2000 (a failed attack); and the bombing of the U.S.S. Cole in Yemen in October 2000 (17 U.S. Navy personnel killed).
It is undoubtedly true that the civilian justice system would have done a better job than the military commissions. It is not at all certain that that would have resulted in convictions and executions for the 9/11 bombers. If the persistent problem with resolving the 9/11 case is the impact of forcible interrogations, it’s not a problem a civilian trial would have solved — it would have complicated both the liability phase, and then the death-penalty phase, for any defendants who’d been found guilty. Nevertheless, the objection to civilian trials was not about the system’s ability to produce trustworthy results; it was that the national interest in trustworthy results was not as high as the national interest in refraining from providing intelligence to enemies actively trying to kill Americans.
Ted Olson is right: It is time to close the book on the 9/11 litigation. The Biden administration should withdraw the government’s intention to seek the death penalty and allow a plea deal in which the 9/11 defendants are incarcerated for life. Otherwise, the stalemate could go on for many more years: There is no realistic prospect of a trial on the horizon, much less a trial in which the terrorists are convicted and executed.
Meantime, Congress needs to examine our Nuremberg-driven assumption that war criminals who commit mass murder must be given a proceeding approximating a criminal trial before they may be executed. It is simply a fact that we are never going to presume the innocence of such offenders or release them if they are somehow acquitted. So why pretend otherwise?
