The failed lawfare policy of the past

Opinion Journal:

The failed terrorist attack aboard Northwest Flight 253 is proving to be highly educational, not least about the Obama Administration and its pre-September 11 antiterror worldview. Yesterday, the White House reversed itself on repatriating Guantanamo detainees to chaotic Yemen, a step in the right direction. Now if it would only revisit its Ramzi Yousef standard for interrogating captured terrorists like Umar Farouk Abdulmutallab.

Ramzi Yousef, you may recall, was the mastermind of the first World Trade Center bombing in 1993 who is now serving a life sentence in a supermax prison in Colorado. The Obama Administration likes to cite his arrest, conviction and imprisonment as a model for its faith that the criminal justice system is the best way to handle terrorist detainees.

"Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear," said President Obama last May 21 at the National Archives. "Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons."

On June 9, 2009, the Justice Department repeated the claim in a fact sheet arguing for handling terrorists in criminal courts:

"1993 World Trade Center Bombing: After two trials, in 1993 and 1997, six defendants were convicted and sentenced principally to life in prison for detonating a truck bomb in the garage of the World Trade Center, killing six people and injuring hundreds more. One of the defendants convicted at the second trial was Ramzi Yousef, the mastermind of the attack."

The World Trade Center trials were successful in winning convictions, and they were understandable because at the time we didn't understand the war we were in. But more than a decade later, the real news in these Administration statements is what they don't claim: Whether Ramzi Yousef told U.S. interrogators anything of actionable value about al Qaeda and its future terror plans.

We now know that when Yousef was captured, in 1995, al Qaeda leaders were working feverishly to attack American targets. Yousef's uncle is none other than Khalid Sheikh Mohammed, the mastermind of 9/11 and one of Yousef's co-conspirators in the failed Bojinka plot to blow up airliners across the Pacific Ocean.

Yet as far as we know, Yousef told U.S. interrogators little or nothing about KSM's plots and strategy once he was in U.S. custody. This isn't surprising, since once he was in the criminal justice system Yousef was granted a lawyer and all the legal protections against cooperating with U.S. interrogators. To this day, we don't recall any official claim that Yousef has provided useful intelligence of the kind that KSM, Abu Zubaydah and other al Qaeda leaders later did when they were interrogated by the CIA.

All of this is directly relevant to the Administration's rash decision to indict Abdulmutallab on criminal charges immediately after his arrest in Detroit on Christmas weekend. The Nigerian jihadist could have been labeled an enemy combatant, detained indefinitely, and interrogated with a goal of discovering who he had met in Yemen, whether other plots are underway, and much else that might be relevant to preventing the next terror attempt. This is a far higher priority than convicting Abdulmutallab and sending him to jail.

...

There is more.

This brief history of the "successful" prosecutions of terrorist is very revealing of what we did not get in terms of intelligence. But is is also revealing in another way that is not expressed. These cases were an even bigger failure when it came to deterring the enemy who used the time we gave them to plan an implement attacks on the Cole as well as the 9-11 attacks.

The Bush administration's aggressive questioning of detainees prevented several attacks, but since Obama took office we have seen a relentless series of attacks some of which were more successful than others. But, what should be clear is that closing Gitmo and going back to a lawfare policy has failed miserable to deter the enemy.

This failed strategy is getting people killed and we are lucky that it has not gotten more people killed.