Again the gnawing question: what to do about terrorists who should be executed when it may be impossible to try them?
Over the last few years, I’ve several times addressed a problem with no satisfying answer: what to do about terrorists who should be executed for their atrocities but who cannot be tried in court — whether due to the imperative of protecting national security information (including precious sources of it) from disclosure, or — as is relevant with respect to the 9/11 jihadists — the happenstance that key evidence was derived from forcibly coercive questioning. (See also here, here, here, and here.)
The problem has come to the fore again in recent days, just in time for the imminent 25th anniversary of the suicide hijacking attacks that killed nearly 3,000 Americans. A military judge, Lieutenant Colonel Michael Schrama, has suppressed the interrogation statements of 9/11 mastermind Khalid Sheikh Mohammed (KSM) in his long-delayed military commission trial. (As this is written, I do not believe Colonel Schrama’s 45-page opinion has been publicly released, so I am relying on press reporting — and on my familiarity with facts we’ve all followed for many years.)
Naturally, there is anger over this outcome — I feel it myself. But it was predictable, and perhaps inevitable.
The blunt fact is that, in using enhanced interrogation techniques — whether the Bush administration realized it at the time or not — the government makes a choice to prioritize (a) the acquisition of intelligence to thwart terrorist attacks and save lives over (b) successfully prosecuting the suspect, which requires compliance with due process. This is a rational choice (or at least could be in a ticking bomb scenario), but it is still a tradeoff. It is not possible to have, simultaneously, (a) aggressive interrogation of war captives in an effort to get fresh intelligence on mass-murder attacks, and (b) civilian due process in which detained suspects are given Miranda warnings, prompt court appearances, a right to counsel, and so on.
For years, the big public controversy has been over whether what was done to KSM and other “high value detainees” amounted to torture under the demanding legal test for that term. Legally, that’s an interesting side issue, however explosive it may be politically. It is beyond cavil that the CIA’s interrogation techniques were forcibly coercive, regardless of whether they technically amounted to torture as a matter of law. That’s all that’s required to prohibit their use as evidence.
To try to avert that result, the government has theorized that, because the FBI’s questioning was not coercive, it broke “the chain of causation” — the notion that KSM’s statements were elicited strictly due to the CIA’s coercion. That would have been a tough hill to climb even if the FBI had given KSM warnings consistent with Miranda. As it happens, the warnings were not consistent: KSM was not told that he had a right to remain silent, that he had a right to counsel, and that the statements could be used against him at trial.
That will sound shocking to people who work in the civilian criminal justice system — or who grew up watching police dramas on television. But it’s not really surprising if we go back in time.
KSM was questioned starting in 2003 (after his apprehension in Pakistan). At that point, the Bush administration was trying to transition from a law-enforcement paradigm of counterterrorism to a law-of-war paradigm. It all happened very fast after 9/11. Little thought was given to what KSM’s rights were. It was wartime and all the signs were that al-Qaeda had set in motion a second wave of 9/11 attacks. KSM would have been (and proved to be) a singular source of intelligence in that regard. Putting the CIA and its black sites aside, even FBI agents, who were making a point of not using forcible coercion, were not going to convey to KSM that he didn’t need to speak to them — much less introduce a defense lawyer into questioning about classified matters. Again, the priority was not due process for KSM, or trying to lay a good foundation for his prosecution in court. It was to get intelligence about ongoing mass-murder plots.
This is why I’ve argued (in the pieces cited above) that the best outcome here would have been to take a guilty plea, even if that meant removing the death penalty from the equation. No administration has wanted to do that because it would be politically explosive (as the Biden administration found when it initially tried to settle the case, then retreated). But the politics do not make the legal consequences go away.
Some final thoughts.
First, the military commission system has been a failure, but that’s not the main reason KSM’s case is in trouble. The coercive interrogations would have been a problem in the civilian system, too. I would say, though, that because of concerns about American soldiers who could be captured by the enemy, the military justice system has less tolerance for coercive interrogation than a civilian jury might.
Second, it’s worth remembering that my old office, the U.S. Attorney’s Office for the Southern District of New York, indicted KSM in connection with the 1994 Bojinka plot (also known as the Manila air plot to bomb aircraft in flight) years before 9/11 happened. There presumably is a provable terrorism case against him, even if 9/11 couldn’t be proven. (KSM also bragged about gruesomely murdering the Wall Street Journal’s Daniel Pearl in 2002; he was never charged — probably out of concern about overcomplicating the already fraught 9/11 case — and how much a prosecution would depend on statements induced by coercive interrogation is a question that continues to be debated.)
Moreover, proving KSM’s role in 9/11 should not hinge on the admissibility of coercive interrogation evidence — although, if he were convicted in the trial phase, he would be able to prove the coercion in the death penalty phase, and that might well persuade a panel of military officers not to impose capital punishment. Military prosecutors are currently weighing their options after the suppression ruling, including a possible appeal. This, in part, is why the trial — which may never happen — has now farcically been postponed until June 5, 2028.