A Different Kind of Justice
The policies that enabled yesterday’s success


Andrew C. McCarthy

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.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.