Waiting on Justice for 9/11

The 25th anniversary of September 11 looms, yet legal wrangling is keeping the terrorists from being brought to justice. The latest holdup is the claim, now pending before a military judge, by Khalid Sheikh Mohammed and his co-conspirators that their confessions were a result of torture. To understand why this case has dragged on for 15 years in the pre-trial phase, feature the Supreme Court’s ruling in Boumediene v. Bush.In Boumediene, a five-to-four decision, the high court held in 2008 that 9/11 detainees at Guantánamo Bay had the right to challenge in courts their incarceration. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony Kennedy wrote for the majority. Granting these defendants broad due process protections marked a departure from precedents and wisdom gleaned from experience in prior conflicts. America took a clearer-eyed view of how to handle enemy combatants during World War II. In June 1942, a handful of Nazi saboteurs landed, via enemy U-boats, on our shores. The men were quickly captured and, before they could carry out any attacks, they were tried under a military commission convened by FDR. By the end of August, most of the saboteurs had been executed. It’s a far cry from the 15 years, so far, of litigation in the 9/11 prosecutions.The Supreme Court in 1942, in Ex Parte Quirin, affirmed FDR’s tactics, holding that a “military commission” was “an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial.” The Nine added that “unlawful combatants,” like the Nazi saboteurs in that case, “are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”In 1950 the Nine, in Johnson v. Eisentrager, again affirmed that enemy combatants lacked recourse to federal courts or constitutional protections. Justice Robert Jackson wrote for the majority that a “nonresident enemy alien, especially one who has remained in the service of the enemy,” does not have “access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.”These precedents, applied to the 9/11 terrorists, could have led to swift justice. Yet the high court’s liberals balked at President George W. Bush’s proposed system of military commissions. Justice Kennedy lamented that limiting due process rights for the accused terrorists would mean “that the political branches may switch the Constitution on or off at will.” Chief Justice Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas dissented.Now that the high court has a conservative majority, the time could be ripe to revisit Boumediene. Chief Justice Roberts argued that Mr. Bush’s commissions had given the 9/11 defendants “adequate opportunity to contest the bases of their detentions, which is all habeas corpus need allow.” The majority’s view, the chief justice warned, gave lawyers “a greater role than military and intelligence officials in shaping policy for alien enemy combatants.” More broadly, the delays in the 9/11 cases expose the error of conceiving of international terrorism as criminal incidents, rather than as acts of war. Better to handle such cases as military matters and punish the perpetrators under the aegis of FDR-style tribunals. As Jackson put it in Eisentrager: “Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.”

Waiting on Justice for 9/11

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