The real KSM scandal

It's not the aborted plea deal, it's the fact that the 9/11 mastermind is still with us.

Earlier this week, the U.S. announced that it had reached a plea agreement with Khalid Sheikh Mohammed, the mastermind behind the 9/11 attacks on America, and two of his accomplices. Nearly 3,000 Americans were killed by those attacks.

Under the deal, the three were to receive life sentences. They would avoid the death penalty.

The agreement immediately met with widespread outrage, including from 9/11 Families United, a group that represents the victims' families and survivors of the attacks. Key Republicans, including Mitch McConnell, also blasted it. Key Democrats, including Chuck Schumer and Hakeem Jeffries (both from the state with by far the largest number of 9/11 victims), were silent.

Secretary of Defense Lloyd Austin has now revoked the agreement. He did not offer an explanation for why he didn’t intervene before it was signed and publicly released. 

The White House claims that Joe Biden did not approve the agreement and did not know about it. It’s not clear whether Biden would even remember having heard about the deal.

In any case, I think it’s scandalous that the agreement was reached. If top officials signed off on it, that’s a disgrace. If the deal slipped past them without their approval, that’s almost as bad. I guess the administration is too busy to keep its eyes on bringing KSM and his colleagues to true justice.

But, to me, the greater scandal is that these guys are still alive 23 years after they engineered the mass murder of Americans. In my view, they should have been summarily dispatched.

Israel is ridding the earth of the masterminds of the October 7 massacre without “due process.” The Obama administration similarly eliminated Osama bin Laden.

Unlike these terrorists, KSM had the good fortune to be captured. He had the even better fortune of falling into the maze knowns as our legal system.

That system is a source of immense for military lawyers and their liberal civilian friends. They insist that our willingness to provide “due process” to alien terrorists proves our decency as a nation.

Rubbish. We don’t need to provide KSM with an elaborate legal process to prove our decency. Only a nation that has lost its self-confidence would suppose otherwise. In my view, all we’ve demonstrated by upholding KSM’s “rights” is a lack of seriousness.

Two decades ago, I spent a huge amount of time and energy arguing with those who thought we were descending into barbarism because of the way we treated alien terrorists like KSM. I don’t want to relitigate this. You either perceive the ridiculousness of a system that has kept KSM alive, and hasn’t even managed to bring him to trial, for 23 years or you don’t.

However, I will indulge in calling attention to a book review I wrote in 2012 for the Federalist Society’s magazine. The review was of Power and Constraint by the estimable Jack Goldsmith. The link to the review itself is dead, but if you’re a glutton for punishment, you can read it in three parts: here, here, and here.

If you’re a glutton only for limited punishment, you can read the following key portions of what I wrote, which describes “how the JAGs hijacked U.S. anti-terrorism policy.”

How did we get to the point where lawyers help manage, and adversely affect, [anti-terrorism policy]? We got there, Goldsmith shows, mainly through the efforts of what he calls “warrior-lawyers.”

These JAGs possess both a military and a legal education. The combination appears to be a heady mix. For example, General Mark Martins, Goldsmith’s protagonist warrior-lawyer, claims that “law embodies and summarizes human experience about right action in a particular context.”

Many experienced lawyers across a wide range of practice areas may find this statement naïve. They may also wonder about the quality of a summary of human experience under which suspected terrorists can be killed without legal process by drone strikes but, if captured in the hope that they will provide valuable intelligence, cannot be slapped in the face.

According to Goldsmith, the post-9/11 policies of the Bush Administration were “a direct affront to the JAG view of the world.” And animated by an unrealistic view of the law and an emphasis on their personal honor, these warrior-lawyers seem to have forgotten that in the United States, civilians control the military, and the Commander-in-Chief is the chief law interpreter for the executive branch.

The JAGs set out to undermine Bush policy through all available means, including leaks, public testimony, coordination with sympathetic politicians, and even assistance from human-rights groups with whom, says Goldsmith, “they had a greater commonality of interest than with the President.” Through these methods, they were able substantially to constrain their adversary, the President of the United States.

The JAGs could not have accomplished this had they not already gained vast influence within their base of operations, the military. They gained that influence primarily because they helped commanders identify and circumvent legal landmines.

But the JAGs were not the passive beneficiaries of a windfall of law they were then asked to help cope with. For decades, Goldsmith reports, they worked with human rights groups with whom they came to share a general outlook.

Not surprisingly, then, the JAGs were instrumental in the decision by the U.S. military to follow many aspects of customary international law, and in the writing of ever-expanding legal and policy manuals that they could then interpret and apply. And not surprisingly, when the Bush Administration sought greater flexibility through measures inconsistent with the shared outlook of the JAGs and their friends in the human-rights community, the JAGs counterattacked with great success.

I hope our “warrior lawyers” and their cheerleaders in the Democratic party and the mainstream media are proud that, thanks to lawfare, KSM and his accomplices are still alive and being fed and boarded by American taxpayers. I hope they continue to be held in high esteem by the human rights groups “with whom they share a general outlook.” I hope they are satisfied that we’re a decent nation.

I never doubted that we are. And I’m disgusted that, 23 years on, our over-lawyered, under-confident society has failed to bring the mastermind behind the killing of nearly 3,000 Americans to justice.