The five surviving, captured jihadists believed most culpable for 9/11 have still not even been tried.
‘Solemn annual observance” is a prolix term if ever there was one. I much prefer it, though, to “anniversary” when applied to 9/11. The atrocities of that day would be unimaginable if they hadn’t happened before our eyes, defying our assumptions about the depths of horror. Who’d have conceived of an inferno so monstrous that people would dive a hundred stories to gruesome death rather than submit to it?
I always dread this solemn annual observance. For those of us who, eight years before 9/11, started battling against the jihad in our earnest but inadequate way, there is no avoiding a profound sense of failure.
Don’t get me wrong: It remains the highlight of my professional life to have prosecuted the Blind Sheikh and his minions, who first bombed the World Trade Center on February 26, 1993, and then were thwarted in their plot to execute an even more audacious attack on various New York City landmarks. I’m proud of the work we did and honored — and more than a little embarrassed — to have gotten credit for the efforts of many more dedicated people than I can count.
Still, the other side of the ledger won’t be denied, especially today.
It was a great satisfaction for us that the Twin Towers still stood, despite what seemed in 1993 to be the best shot of determined terrorists — the 1,400-pound chemical bomb they’d built and smuggled via rental van into the Trade Center’s underground parking garage. That satisfaction, almost smugness, over the jihadists’ initial failure, was crushed 20 years ago today, in the rubble of the seemingly invincible skyscrapers. One couldn’t help but remember the vow of the ’93 jihadist Ramzi Yousef that they’d do it right the next time — and there’d be a next time, he was sure.
Even worse, though we convicted the Blind Sheikh (Omar Abdel Rahman), ours was not a capital case, so the best we could do was a life sentence. Despite his high-security U.S. penitentiary confinement, he issued the fatwa (the sharia edict, which may be pronounced only by a qualified scholar) that al-Qaeda emir Osama bin Ladin credited with green-lighting the 9/11 strikes that killed nearly 3,000 of our fellow Americans at the Trade Center, the Pentagon, and a field near tiny Shanksville, Pa.
In the parlance of law enforcement, we “brought him to justice.” But we didn’t stop him.
The 20th solemn annual observance of 9/11 is especially dark, for two reasons.
First, there is our government’s disgraceful pull-out from Afghanistan. Reasonable minds can differ about the merits of withdrawing American forces (which led, inexorably, to the withdrawal of our coalition partners). I’ve argued that the counterintelligence mission that brought us to Afghanistan 20 years ago — i.e., denying jihadists not only sanctuary but also operational partnership with the host government — remains imperative. Others argue that the mission was so warped by irrational democracy-building in a hostile, fundamentalist Islamic society that the government cannot be trusted to do effective counterterrorism.
Wherever one comes out on that, though, President Biden’s recklessly supine surrender — as if a superpower could not protect its own from jihadists, as if we did not realize the Taliban were trying to make it look as though they were chasing us out — is a humiliation. It doesn’t necessarily signal the end of the American era, but for now it will embolden our enemies, and not just the jihadists. Despite the blood and treasure sacrificed, we are more vulnerable today to new 9/11-style attacks than at any time in two decades.
Second, there is the travesty otherwise known as the prosecution of the 9/11 terrorists. It is back in the news this week. The five surviving al-Qaeda jihadists believed to be most culpable, led by Khalid Sheikh Mohammed, have still not been tried, two decades after the attacks, and more than 15 years after their capture. The military commission is now before its fifth judge. Though pretrial proceedings resumed this week after the latest delay (18 months, due to COVID-19), the trial is not imminent. Maybe the start of next year . . . maybe a few months later . . . who knows?
It is worth remembering — solemnly — how this happened.
Even before 9/11, a few of us who’d been involved in terrorist prosecutions urged that the jihad was a national-security challenge, not a crime problem, as it had been regarded in the Clinton years. It was national-security insanity to apply courtroom rules when the jihadist enemy was making war on the United States, from faraway foreign havens where our agencies cannot operate and the writ of our courts does not run.
Answering bombs with subpoenas was a provocatively weak response. Vesting wartime enemies with civilian due-process protections, moreover, required disclosing our intelligence to them, thus imperiling our deep-cover sources and increasing the likelihood of more terrorist attacks.
Note that the 1993 WTC bombing was followed by the NYC-Landmarks plot, the mid-’90s “Bojinka” plot to bomb American airliners in midflight, bin Laden’s public declaration of war against the United States, the 1996 Khobar Towers bombing in Saudi Arabia (killing 19 U.S. Air Force members), the 1998 bombings of the U.S. embassies in Kenya and Tanzania (killing more than 200 people), the 1999 attempt to bomb the U.S.S. The Sullivans, and the 2000 bombing of the U.S.S. Cole (killing 17 U.S. Navy members and nearly sinking our destroyer).
It was only after this spate of strikes that 9/11 occurred. Our government’s fecklessness invited more attacks. Our government’s abiding al-Qaeda’s sanctuary in Afghanistan and working partnership with the Taliban — the very same arrangement they now have yet again — resulted in the most audacious attacks, from 1996 through 9/11.
President George W. Bush rightly realized, after 9/11, that our law-enforcement approach to counterterrorism had been a failure. He tried to shift the paradigm. In many ways, he succeeded: treating the threat as a national-security challenge rather than a crime problem, exploiting the laws of war to kill and capture terrorists in their overseas nests. These measures kept our country safe. On the other hand, the military-commission system has been a failure.
There are many reasons for this, not least the hostility of the organized bar. But the remorseless fact, for those of us who supported the commissions, is that the system has not worked. Unlike the civilian justice system, it is not on a sound enough footing, with a deep foundation of public acceptance, to withstand relentless challenges. The civilian courts have proved far more competent. The judges have presided over complex, contentious trials with skill; they’ve imposed appropriate sentences; and they’ve rigorously reviewed the outcomes on appeal to ensure their fairness and firmness.
Over the years, I’ve posited that the system for prosecuting terrorists should be overhauled, replaced by a national-security court that would combine the best features of both military and civilian justice. Such a new tribunal would be tailored to the uniqueness of the foreign terrorist threat: jihadists who camouflage themselves as ordinary members of the societies they attack. There has not been an appetite to construct a better model, even as the weaknesses of the current systems become more pronounced.
The men who mass-murdered thousands of our fellow citizens smirked in a Guantanamo Bay courtroom this week. Like their Taliban allies, they are still tormenting us 20 years later. The long war goes on, and we owe the families of our fallen so much more than we have delivered.
PHOTO GALLERY: 9/11 Attacks