A Different Kind of Justice

The policies that enabled yesterday’s success

Andrew C. McCarthy
Monday, May 02, 2011

‘Justice has been done.” That was President Obama’s succinct assessment of the killing of Osama bin Laden by U.S. special-ops forces, carried out at his direction on Sunday. “We will be true to the values that make us who we are,” he said. Those values are what led him to pronounce justice done — no trial and no court authorization, and, for once, “habeas corpus” really meant that our government had the body, a corpse to identify, not a defendant to process.

It is worth remembering that bin Laden had been under indictment by the Justice Department for 13 years when he finally met his demise yesterday. A federal grand jury in Manhattan had charged him with terrorism conspiracy in June 1998, after he had, yet again, declared war on the United States. He’d already been doing that for years. It was only a few weeks later, on Aug. 7, 1998, that his al-Qaeda cells in eastern Africa bombed the American embassies in Nairobi and Dar es Salaam — the first 224 of what became the thousands of innocents the master terrorist would murder in the ensuing decade-plus.

I argued in The Weekly Standard at the time (“The Sudan Connection: The Missing Link in U.S. Terrorism Policy”) that “justice” for bin Laden and the global jihad backed by several rogue nations — Iran, Iraq, Afghanistan, and Sudan, for starters — was to regard them as a national-security challenge crying out for a military response. They were manifestly not a crime problem to be managed by FBI agents and prosecutors like me.

Yet, prosecution of crime rather than war had been the Clinton-administration counterterrorism strategy, beginning with the 1993 World Trade Center bombing. It was maintained through a plot to bomb New York City landmarks later that year and a conspiracy to blow U.S. airliners out of the sky over the Pacific thereafter. The law-enforcement approach was even reaffirmed after jihadists killed 19 U.S. airmen in the 1996 Khobar Towers bombing in Saudi Arabia — an attack the Clinton administration soon learned Iran had orchestrated, the mullahs and their forward militia, Hezbollah, having had cooperative relations with al-Qaeda since the early nineties.

Still nothing changed — in fact, President Clinton stood idle as the Saudis obstructed the FBI’s fruitless effort to investigate Khobar Towers. The ’98 embassy bombings did briefly stir Bill Clinton to lob a few cruise missiles bin Laden’s way — including at a Sudanese pharmaceutical factory that Clintonistas to this day maintain was a joint WMD venture involving bin Laden and Saddam Hussein. But that moment of clarity quickly passed — the threat was growing by leaps and bounds as threats are certain to do when met with fecklessness, but the Lewinsky scandal was finally burning out and with it Clinton’s impetus to treat a war like a war.

By the end of 1999, the 9/11 Commission gingerly recounts, Clinton had so befuddled the CIA regarding whether covert agents had authority to kill bin Laden that several golden opportunities were lost. Meanwhile, al-Qaeda continued to plan stunning operations, including the bombing of a naval destroyer, the U.S.S. Cole, in October 2000 — murdering 17 U.S. sailors as Clinton made his exit from the stage.

Prompted by the 9/11 atrocities, a new administration dramatically changed course. At least for a time, the government’s sense of “justice” was brought in line with the public’s: Pres. George W. Bush pledged that we would hunt terror cells down wherever they operated, and we would put the rogue regimes that abetted al-Qaeda to the test of changing their ways or feeling the wrath of the world’s lone superpower.

The Taliban, al-Qaeda’s hosts in Afghanistan, were driven from power, and bin Laden’s sometime-ally, Saddam Hussein, soon followed. Yet, bin Laden himself eluded our armed forces and intelligence services. Simultaneously, Iraq devolved from a spectacularly swift vindication of the Bush doctrine to a bloody, years-long misadventure in Islamic nation-building. The appetite for taking on the regimes that enable al-Qaeda to project outsize power was lost once the public saw that the price-tag would include precious lives and untold billions to be sunk into the dubious construction of sharia-lite democracies.

In the fallout, the hard Left recovered its voice. In early 2004, Howard Dean — who was then leading the Democratic presidential field and would go on to become chairman of the Democratic National Committee — explained that he could not judge what should befall bin Laden because the terror master had not yet had a fair trial and been convicted by a jury. Those in “positions of executive power,” he declaimed, should not “prejudge jury trials.”

Similarly, the ever-malleable Eric Holder, Clinton’s deputy attorney general, was back to portraying Bush counterterrorism as a borderline criminal exercise in Constitution-shredding. Immediately after 9/11, when Democrats had been anxious to prove they could be just as tough on terrorists as Bush, Holder had admonished a CNN host that “we are in the middle of a war,” and thus that captured terrorists should be detained without trial as “combatants” — in addition to being denied Geneva Convention rights so that “we . . . have an opportunity to interrogate them and find out what their future plans might be, where other cells are located.” But by 2008, while serving as a senior adviser to the Obama campaign, Holder was bemoaning Bush’s failure to treat captured terrorists “in accordance with the Geneva Conventions,” and condemning Bush counterterrorism as a green light for “torture” and a betrayal of the “rule of law.” One wonders what the attorney general will make of the fact that the intelligence derived from interrogating detainees proved essential in confirming bin Laden’s location for yesterday’s successful operation.

Obama himself campaigned on promises to end Bush counterterrorism, shutter Gitmo, and return to Clinton’s law-enforcement approach. There was a caveat, though, an indication that he had learned something from Clinton’s missteps. The candidate promised that he would attack al-Qaeda havens, focusing particularly on Pakistan — which he limned as especially unreliable. The then-senator warned that if Pakistan’s government did not clean up its own mess, he would not hesitate to attack its terrorist redoubts.

For his stance, the McCain campaign poked fun at his purportedly reckless provocation of ally. As some of us said at the time, however, Obama was entirely right.

There is much fault to find in Obama’s overall approach to the Islamist threat. His management of the vaunted “Arab Spring” has been incoherent, and there is dizzying discord between his rhetoric and actions when it comes to what “justice” for terrorists should entail — gold-plated due process for 9/11 architect Khalid Sheikh Mohammed versus lethal special forces for 9/11 maestro bin Laden. Nevertheless, Obama has clearly figured out that arrest warrants and subpoenas are not going to get it done in places like Islamabad, and that if a U.S. president is not clear in his directions to kill the jihad’s lead actors, it is they who will do the killing.

The slaying of this monster, the peerless capability of our armed forces it reaffirms, and the demonstration of national unity it has sparked, make this a great day for our country. They suggest, moreover, something else worth celebrating: the outlines of an effective, practical, and economic counterterrorism.

The criminal-justice system is not a deterrent to foreign terror networks that are bivouacked outside our country and thus outside the jurisdiction of its investigative agencies and courts. Nor are nation-building enterprises the answer: They are prohibitively costly in blood and treasure; they inspire sharia-based attacks against us; and they won’t make us safer — terrorists are expert at exploiting the freedoms available in democratic societies, and there is no reason to believe that country A’s becoming a democracy would make country B safer from jihadist terror. The future will not belong to the law-enforcement approach or the democracy project.

It will belong to small-scale special-forces operations that target top jihadists and their cells. It will entail diplomatic pressure and, when necessary, limited military engagements against terror-sponsoring regimes. It will feature less indulgence of faux allies like Pakistan, which do more to aid than confront the jihad. It will fashion a new legal system for the indefinite detention of al-Qaeda operatives who, for intelligence reasons, cannot or should not be tried in civilian courts. And it will require aggressive prosecution of al-Qaeda imitators inside our country, as well as those who materially support terrorists.

That’s the justice that reflects enduring American values. Here’s hoping we’ll someday remember May 1, 2011, as the day the nation came together around it — amid a warm glow of patriotism and a monumental defeat for our enemies.