After the embassy bombings, the aforementioned bin Laden was indicted along with his top henchman Ayman al-Zawahiri and nearly two dozen others. Exactly six of those men have been prosecuted as a result. And of those, the top-ranking al-Qaeda figure, Mamdouh Mahmud Salim, has never been tried for the embassy bombings. When we gave him all the glorious privileges of the American Constitution, he used his access to free legal help as an opportunity to attempt a kidnapping escape from custody — in the course of which he maimed a prison guard by stabbing him in the eye before being subdued.
Then, of course, there was the October 2000 attack on the Cole in Aden harbor. No arrests, no indictment until well after the 9/11 attacks. The indictment has now been on the books for years as our Yemeni “allies” have pretended to pursue the al-Qaeda perpetrators — who, of course, have been permitted to escape from confinement. There is no prospect of an American prosecution because of the justice system’s painfully obvious limitations. Those terrorists are free to plot more American deaths, unless, of course, our military or intelligence operatives get them first.
And that’s the point isn’t it? Khalid Sheikh Mohammed has been under indictment by the Justice Department even longer than bin Laden. He was first charged in 1996, in connection with the so-called “Bojinka” plot to blow up American airliners as they flew over the Pacific (one Japanese tourist killed during a dry run). The plot was also found to include plans to assassinate President Clinton and Pope John Paul II.
So what happened? Because criminal prosecution is incapable of dealing with the likes of KSM — a highly insulated foreign jihadist operating from terror safe havens sprinkled across the globe — he remained free to plot murder and mayhem for years, finally masterminding 9/11.
KSM was apprehended only after the Bush administration changed strategy and started regarding terrorists as what they are: wartime enemies, rather than in possession of Obama’s suggested “criminal defendants” status.
The fact is that we used the criminal justice system as our principal enforcement approach, the approach Obama intends to reinstate, for eight years — from the bombing of the World Trade Center until the shocking destruction of that complex on 9/11. During that timeframe, while the enemy was growing stronger and attacking more audaciously, we managed to prosecute successfully less than three dozen terrorists (29 to be precise). And with a handful of exceptions, they were the lowest ranking of players.
When an elitist lawyer like Obama claims the criminal-justice system works against terrorists, he means it satisfies his top concern: due process. And on that score, he’s quite right: We’ve shown we can conduct trials that are fair to the terrorists. After all, we give them lawyers paid for by the taxpayers whom they are trying to kill, mounds of our intelligence in discovery, and years upon years of pretrial proceedings, trials, appeals, and habeas corpus.
As a national-security strategy, however, and as a means of carrying our government’s first responsibility to protect the American people, heavy reliance on criminal justice is an abysmal failure.
A successful counterterrorism strategy makes criminal prosecution a subordinate part of a much broader governmental response. Most of what is needed never happens in a courtroom. It happens in military operations against terrorist strongholds; intelligence operations in which jihadists get assassinated — without trial; intelligence collections in which we cozy up to despicable informants since only they can tell us what we need to know; and aggressive treasury actions to trace terror funds.
That is how you stop the homeland from being attacked, which is what we have done for the last seven years. And it is that from which Obama wants to move away.
Obama would bring us back to September 10th America. And September 10th is sure to be followed by September 11th .
— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.