By Andrew C. McCarthy
Saturday, September 17, 2022
As in most things, Winston Churchill had the right instincts when it came to war-crimes trials for monsters. As World War II raged, he observed that if Hitler fell into London’s hands, there was no doubt that the British government would put him to death. The Führer and his inner circle were among history’s most egregious war criminals. Yet, as the war drew to a close, there was pushback. FDR assessed that Americans would want a trial before death sentences were imposed; and Stalin, of course, was already sold on the value of “trials” that were merely propaganda productions.
Churchill bristled: “The trial will be a farce.” Suddenly, everything that had been crystal clear for years after Nazi atrocities triggered combat operations under the laws of war would become clouded by the vagaries of peacetime due process. The barbarous “defendants” would be presumed innocent. “All sorts of complications ensue as soon as you admit a fair trial,” the prime minister opined. Better to “execute the principal criminals as outlaws.”
It is said that Churchill’s views moderated as the Nuremburg process played out and victor’s justice was achieved. Perhaps. But he had it right the first time. Our current intractable impasse — our 21-year impasse — over the war-crimes proceedings against jihadist terrorists who sadistically murdered nearly 3,000 Americans in the 9/11 atrocities is a case in point.
Simmering outrage boiled over this week with word that the Biden administration’s Defense Department prosecutors are in plea negotiations with Khalid Sheikh Mohammed and four others who have yet to stand trial by military commission for their leading roles in the attacks — the suicide hijackings of four planes: two that destroyed the World Trade Center, one that struck the Pentagon, and one that was downed by heroic passengers over Pennsylvania as the jihadists tried to guide it into Washington, undoubtedly targeting the Capitol or the White House.
The plea talks are not really a new development. Six months ago, I explained that settlement negotiations were underway. Things have gone dark since then. In part, that’s because convening all the necessary participants at Guantanamo Bay is a logistical challenge. In part, it’s because lawyers and judges keep rotating out of the long-running debacle. And in part, it’s because the Biden administration — which already has the 9/11 families seething over its solicitude toward the Taliban, including helping Afghanistan’s new/old rulers evade money judgments for their complicity in al-Qaeda’s global jihad — sought to avoid more negative publicity as the annual 9/11 observance approached. But no sooner did the anniversary pass than were the plea negotiations back in the news.
The outlines of a plea deal are easy to see but, for many of us, impossible to swallow. In exchange for a guilty plea with a sentence of life imprisonment, the government would take the death penalty off the table. This would put an end to the interminable nightmare, but it would not be justice — not even close.
These are not ordinary defendants. They are hosti humani generis, the enemy of mankind. They are jihadist terrorists who tried to destroy the very constitutional order whose protections they now exploit. They mass-murdered Americans.
What do we get out of a guilty plea with a life sentence? We already know that they are guilty and that their release can never be permitted, regardless of whether they are ever tried. After all, that is why they are still detained in a military prison despite not having been tried in over two decades. No matter what happens, the political outrage that would follow if they were freed from U.S. custody makes that prospect seem inconceivable. (I have to say “seem” because many of the things I believed were inconceivable in September 2001 are now features of everyday life.)
The farce that their military commission has become has been indulged for so long only because we’ve convinced ourselves that a trial, or at least the simulacrum of one, is the box that must be checked before their execution — the only conclusion consistent with justice — can take place.
Yet, the problem is what it has always been, and what Churchill recognized it to be 80 years ago. The vicissitudes of warfare are incompatible with the demands of a Western trial. In warfare, far from presuming the enemy innocent, we make killing and capturing the enemy until his will is broken our imperative. We make life-and-death decisions based on intelligence that can never see the light of day in a public trial and that may well fall short of courtroom evidentiary standards.
When we capture enemies whose barbarities disqualify them for treatment as honorable prisoners of war, we interrogate in an effort to thwart further atrocities. Generally, such questioning, while coercive, is humane. In the case of the 9/11 terrorists, however, it was often inhumane. That said, we needn’t pause long over hundreds of waterboarding sessions, the rectal rehydration technique, the painful stress positions, and so on. Interrogation evidence is inadmissible at trial even if derived from tactics considerably less horrifying than these. Forcing a person — even an enemy of humanity — to provide evidence against himself is anathema to the concept of a Western trial.
It is beside the point whether extreme forms of coercion can be morally justified (a question on which reasonable minds differ passionately). If we are to have a trial worthy of the name, prosecutors cannot use coerced confessions, period. When the coercion has been extreme, moreover, courts are not going to admit confessions subsequently adduced under tolerable conditions, after the coercion has broken the detainee’s resistance.
That, of course, doesn’t make the terrorist war criminal any less guilty or any less deserving of execution. It may, however, make him impossible to try . . . which is a problem if your baseline assumption is that a trial must precede an execution.
I was a prosecutor on what passed for the front line of the jihadist war on America in the 1990s — the courtroom, not the battlefield. In those early days, the Clinton years, government officials spoke delusionally about the virtue supposedly entailed in bringing our enemies into civilian court and vesting them with all the majesty of constitutional due process — all the rights of the Americans they were trying to kill, including the discovery rights that gave them access to our intelligence files. This was somehow going to convince the world, including the terrorists themselves, that we were really the good guys. To the contrary, the world went right on blaming America for its woes while our enemies became more efficient and audacious in their attacks.
Finally, after 9/11, the government saw the folly of treating an alien terrorist enemy at war with the United States as if it were merely a crime problem fit for peacetime police processes. Our enforcement paradigm shifted to a war footing, with civilian prosecution receding to a still important but subordinate role. Yet the progressive conceit remained: Captured terrorists had to be given grade-A civilian due process, no matter how impractical that was apt to be under the circumstances.
How impractical was that? Well, we might want to remember that most of the principal “defendants” indicted in modern terrorism cases — e.g., KSM himself, al-Qaeda emir Osama bin Laden, and his successor Ayman Zawahiri — had to be addressed by military force despite being under Justice Department indictment for scores of combined years. In the main, they plotted against us from overseas safe havens, where our law-enforcement agencies do not operate and the writ of our courts does not run. We could not even arrest them, much less put them on trial.
Bin Laden and Zawahiri got due process in the form of lethal military operations, in Pakistan and Afghanistan, respectively (KSM was captured in Pakistan). In the Biden years, as in the Obama years, there has been no hesitation about killing terrorists who might well have been captured instead. And, we must observe, there has been no compunction about the lack of a trial in such cases. Lethal force spared these Democratic administrations the headaches of deciding how to try the jihadists and where to detain them — the civilian due process that progressives prefer being problematic, and the moronic “Bush’s Gulag” rhetoric having made detention at Gitmo (among the world’s most humane prisons) politically untenable.
We could point fingers all day: Bush wanted military commissions but didn’t give them a sound legal infrastructure. They didn’t have a sound infrastructure because the Left attacked them incessantly — nothing short of civilian due process would do. The Supreme Court insisted that Congress must sign off on Bush’s commission system, and then, when Congress did so, the Court changed its mind and decided the system wasn’t good enough. When they did operate, the commissions performed abominably. But even a better court system would have been tied up in knots by the interrogation tactics used in the Bush years. When the 9/11 terrorists first seemed poised to plead guilty, Obama did not want to take the plea because he’d campaigned against Bush/Cheney counterterrorism, so he tried to transfer the terrorists to the civilian justice system. When that turned out to be politically and practically unworkable (even in blue, blue New York City), Obama overhauled the commission system with the aid of a Democrat-controlled Congress. The “improved” system still couldn’t get the cases tried. It remains plagued by a raft of legal issues. It can’t fathom what to do about accused terrorists who’ve been subjected to shockingly coercive tactics, and who naturally insist on presenting evidence of that treatment in their cases.
Regardless of how much blame there is to go around, the brute facts are that we have five terrorists charged in the 9/11 attacks, with no prospect, after 21 years, that the trial will get started anytime soon. Even if the trial were somehow to commence in the next two to three years, there is no guarantee that it could be brought to a successful conclusion. If it did, estimates are that it would take a year, after which the appeals process would start . . . and continue for a few more years. And that presupposes that the terrorists have been convicted and sentenced to death, of which there is no assurance.
You’re reading this at National Review, so chances are you like the Biden administration about as much as I do. What’s more, you probably suspect, with good reason, that Biden’s zeal to plead the 9/11 case out with life sentences and call it a day is explained, at least in part, by the president’s assurances to his woke-progressive base that he opposes the death penalty and will never impose it. Naturally, he won’t tell the 9/11 families and the country that he opposes the death penalty for KSM & Co. It’s the same two-step he’s pulled with Boston Marathon terrorist Dzhokhar Tsarnaev: The Biden administration proclaims to the nation that it fought to reinstate the capital sentence, but whispers to Democrats not to worry because the death penalty will not be enforced on his watch.
Yes, it’s a cynical game. But that’s not the real problem.
The problem is that we’ve predetermined, entirely rationally, that justice requires the execution of these monsters, but we’ve accepted — based on Nuremburg and all the sonorous tropes it spawned — that there can be no execution without a trial. But it is highly unlikely that these monsters can be tried in a process that we would recognize as a trial. Even if they could, it might take forever, and the outcome would be uncertain. And here’s the kicker: If KSM were walking down a street in Karachi today, under circumstances where he could easily be placed under arrest, we would take him out with a drone — with no remorse and without a second thought about the lack of a trial.
Churchill was right the first time.
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