FrontPage Magazine | 11.17.09
By Alan W. Dowd

It’s one thing to try out a new policy, especially when an existing policy isn’t working. That makes good sense. It’s quite another to dust off an old policy, especially when that policy has already been proven a failure.

This is a fair description of what the Obama administration is doing as it prepares to haul Khalid Sheikh Mohammed and other 9/11 terrorists into the U.S. judicial system. We’ve tried this before, and it failed miserably.

Recall that before 9/11, al Qaeda made no secret about its means and motives. Led by Osama bin Laden and Khalid Sheikh Mohammed, the terror superpower not only promised to kill Americans, but proved its capacity to do so, again and again. And America, again and again, proved its inability to grasp the nature of the enemy and the threat it posed.

Indeed, from Pan Am 103 to the first attack on the World Trade Center in 1993 to the embassy attacks in 1998 to the USS Cole attack, administrations from both parties treated bin Laden and his forerunners and followers like a mob family rather than what they are—a motivated and tenacious military adversary. Consider the record:

In 1993, terrorists linked to bin Laden threw their first blows at the TwinTowers, killing six Americans and injuring 1,000. Washington responded with indictments and prosecutions. Later that year, militiamen trained by al Qaeda shot down a pair of U.S. helicopters and killed 18 U.S. troops in Mogadishu. Washington responded by hastily withdrawing. In 1996, Saudi and Lebanese terrorists with links to Hezbollah and al Qaeda collaborated in the bombing of the U.S. military’s KhobarTowers in Saudi Arabia. The blast claimed 19 airmen and injured 200. Washington responded with indictments and deportations. In 1998, al Qaeda bombed a pair of American embassies in Africa, murdering 224 civilians and injuring more than 5,000. Washington responded with an impotent volley of cruise missiles, an indictment of bin Laden and a $5 million bounty. Finally, in October 2000, al-Qaeda terrorists used a rubber boat to blast a hole in the USS Cole, killing 17 sailors. Washington responded not by sending troops into Yemen, but FBI agents.

In short, the enemy isn’t impressed or intimidated by the long arm of American justice. As former U.S. Attorney Mary Jo White put it in 2002, “Criminal prosecutions are plainly not a sufficient response to international terrorism,” adding that “we plainly need more comprehensive measures and, most especially, a strong and continuing military response.”

If indictments and legal briefs were effective in combating terrorism, the WorldTradeCenter would still be standing.

Yet Attorney General Eric Holder, without any sense of irony, calls the administration’s decision “a step forward in bringing those we believe were responsible for the 9/11 attacks and the attack on the USS Cole to justice.”

In fact, it’s a step backward, as we will see during the legal circus and grandstanding by our enemies—and the political posturing and score-settling by our fellow citizens—that is sure to surround these trials. Perhaps worst of all, Manhattan will be subjected to yet another kind of assault by the enemy, as al Qaeda uses what could be the most-followed trial in history to put America in the dock.

Holder says he is “confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years.” But that misses the point entirely. This is not about whether America’s justice system is fair; it’s about whether it makes any sense to fight such an enemy with lawyers rather than warriors.

In one sense, the desire—even insistence—of some Americans to prosecute the 9/11 planners rather than prosecute a war is understandable. It’s a reflection of America’s preferred way of settling disputes. Rather than cut off appendages, we ask a judge to garnish wages. Rather than kill each other, we sue each other. Rather than firebomb corrupt corporations, we take them to court. We are a nation of laws and rights. Our system of government is grounded in the rule of law, not in the screeds of a messianic madman. And therein lies the problem: Our courts are designed for administering justice, as we Americans have come to define it, between Americans. They are not for defending the national interest, and they are certainly not for waging war.

Far from being fear-struck by indictments, government findings and judicial decisions, the masterminds of modern terror wear the notoriety as a badge of honor. As bin Laden once bragged after Washington added the Taliban regime of Afghanistan to the list of state-sponsors of terrorism, “This decision is for us a certificate of good conduct for the government of the Taliban, and it acquits them of the accusation of being followers or agents of America.”

According to Holder, “The many Americans who lost friends and relatives in the attacks of September 11, 2001 and on the USS Cole…deserve the opportunity to see the alleged plotters of those attacks held accountable in court.”

I would think that they, like the families of those killed at Pearl Harbor, deserve something more: an assurance that their loved ones didn’t die in vain and that Americans learned a lesson from their immeasurable loss on September 11, 2001.