But why did it take so long?
- Last Updated: 3:48 AM, September 30, 2011
- Posted: 11:11 PM, September 29, 2011
Before 9/11, there was USS Cole.
On Oct. 12, 2000 terrorists loaded a small boat with explosives and set it off next to the US Navy destroyer as it sat peacefully in the Yemeni port of Aden, killing 17 American sailors and wounding 39 more. The alleged mastermind of the attack, Saudi-born Abd al Rahim al-Nashiri, was captured in 2002. Since 2006, he’s been sitting in Gitmo, untried and unpunished.
Now, more than a decade after the crime, the families of the Cole victims may finally see some justice. On Wednesday the Pentagon announced that it’s referring charges against al-Nashiri to its Defense Military Commissions unit, setting in motion an official military tribunal, and asking for the death penalty.
But why has it taken this long?
For three years after his capture, al-Nashiri was in the CIA’s hands, providing information on the Cole bombing and on al Qaeda networks in Yemen and elsewhere. Meanwhile, Pentagon investigators were painstakingly collecting evidence for an eventual military trial -- a process constantly interrupted by civil-liberties attorneys’ litigation trying to bring the entire project to a halt.
The tribunals were one of the chief targets of leftist groups like Human Rights Watch and the ACLU -- who played on the image of a military court as a drumhead proceeding followed by a firing squad and a last cigarette, and blasted them as “constitutionally inadequate” and (per al-Nashiri’s lawyer, Rick Kammen) “second-class justice.” Some may even have believed it.
Their unspoken complaint was that uniformed judges would also rigorously protect national security secrets from leaking out through testimony. A clever defense lawyer in a civilian court can use that threat to bring the proceedings to a screeching halt.
The first irony here: Al Qaeda itself instructs its people, if captured, to “work” the US justice system -- to turn a trial into a media circus, and if possible to use the publicity to put America on trial instead.
Second: Yes, military trials have different rules of evidence, and grant the defense fewer procedural rights. But US service members are tried the same way every day.
Yet shutting down the tribunals and giving Gitmo detainees full-scale civilian trials, indeed closing Gitmo itself, became dogma for liberals in the Bush years.
It was only after liberals took power with President Obama’s election that reality began to bite back. It turned out the American public overwhelmingly actually liked the way the Bush administration had fought the War on Terror, including letting our military handle the most dangerous terrorist suspects.
When Obama tried to close Gitmo, his fellow Democrats in Congress blocked him. When Attorney General Eric Holder announced that 9/11 mastermind Khalid Sheik Mohammed would go on trial in lower Manhattan, the public outrage shook the White House to its foundations.
Holder and the White House, however, still held out on the military tribunals. A year ago this month, the Justice Department told disappointed Cole families that it was suspending all of them, including the one against al-Nashiri, and that in its opinion “no charges are pending” in the case.
That was then, this is now -- as the presidential election season heats up. Now KSM will face one of those military tribunals, as will al-Nashiri.
The administration claims this is because it’s finished with an overhaul of the commission system. But Eric Holder’s public anger when Congress blocked his plans for a civilian trial of KSM and his 9/11 co-plotters argues otherwise.
More likely, the Obama White House has come to realize that the closed door nature of the commission proceedings -- once a major strike against them -- will work to its advantage in an election year. The less said about how top terrorists were captured, and how they were interrogated (we know al-Nashiri was waterboarded at least once), the better.
Obama now wants clean convictions, not messy media circuses, and military trials will get him there.
That’s bad news for terrorists, and good news for the Cole families -- and America.
Arthur Herman’s most recent book is “Gandhi and Churchill.”Follow @NYPostOpinion