In the 15 years since 9/11, everything has changed and we’ve lost far too much. And yet, we seem psychologically — if not literally — as vulnerable to terrorist attacks today as we felt we were in the days and weeks after 9/11.
But rather than focus on overbroad generalizations about the world after 9/11, consider the case of Abd al-Rahim al-Nashiri, a Saudi Arabian terrorism suspect who has been in U.S. custody since November 2002. He is currently facing a trial by a military commission at Guantánamo.
The moral of Nashiri’s story is that our response to crises like 9/11 should not be to reinvent the wheel when it comes to punishing those we hold responsible, but rather to trust the institutions we already have.
Although Nashiri has long been one of the government’s “high-value detainees,” he has never been tied directly to 9/11. Rather, the charges against him stem from separate terrorist attacks — the October 2000 bombing of the USS Cole and the October 2002 bombing of a French oil tanker.
The government has long maintained that it has compelling evidence connecting Nashiri to both attacks. If that is correct, he would have been convicted long ago, and he would already have been executed for his crimes.
Instead, the government first sent Nashiri to CIA “black sites” in other countries, where he was repeatedly subjected to interrogation methods that constituted torture, presumably because the government thought these methods might somehow produce actionable intelligence information.
By all accounts, they didn’t.
After a 2006 Supreme Court ruling, the black sites closed and Nashiri was sent to Guantánamo. He was slated for trial before a military commission, even though his alleged crimes could be unquestionably tried in U.S. civilian courts.
The commission, in contrast, only has jurisdiction to try war crimes committed during “hostilities” against the United States. There’s a good argument that we weren’t yet at war with al Qaeda at the time of the bombing of the USS Cole, and that, regardless of when that war started, the 2002 bombing of the French tanker had nothing to do with it.
In other words, Nashiri’s trial would raise messy questions about the scope of the commission’s jurisdiction that could easily have been avoided by sending him to civilian court.
Ten years later, those questions remain unanswered, and Nashiri’s military commission trial remains at least several years away.
There are many reasons why it’s taking forever, but the two biggest factors have been the novelty of the commissions and the specter of Nashiri’s torture, which have raised their own questions about his fitness to stand trial, the admissibility of the evidence against him, and so on.
The latest blow came at the end of August, when a federal appeals court in Washington refused to decide whether the commission can properly try Nashiri, holding instead that such a question should be deferred until a post-conviction appeal.
The fact that we’re still talking about Nashiri on the 15th anniversary of 9/11 is powerful proof of the biggest mistake we made in its aftermath: thinking we could obtain justice for the victims and prevent future attacks by using new and untested legal processes, and with new and untested rules for interrogating the detainees.
It is tragic that, 15 years on, there’s still no closure for the victims of 9/11 itself, the Cole bombing, or a host of other terrorist atrocities. But the real tragedy would be if we failed to heed that lesson the next time around.
Instead, the right way forward is to trust the institutions we already have. We must use the military to defend the nation and the civilian courts to bring to justice those who attack us or otherwise break our laws.
We’ve already taken significant strides in recent years: No new detainees have been sent to Guantánamo since 2008, and terrorism suspects captured today end up in our civilian court system.
But as the Guantánamo cases drag on inexorably, they’re a powerful and tragic reminder of how that should have been the government’s approach all along, and of the terrible price in terms of resources, money, legitimacy, and, most importantly, a lack of closure, that we instead continue to pay.
Stephen I. Vladeck is a professor of law at The University of Texas at Austin.
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