During the last week of August, the Pentagon’s senior judge overseeing terror trials at Guantanamo Bay dropped all charges against suspected al Qaeda terrorist Abd al-Rahim al-Nashiri, thereby upholding President Obama’s order to freeze military tribunals there and show movement on his broader agenda to close the detention facility. Mr. Al al-Nashiri is the suspected al Qaeda mastermind behind the attack on the USS Cole almost a decade ago. On Oct. 12, 2000, suicide bombers attacked the Navy destroyer while it was peacefully harbored and refueled in the Yemeni port of Aden, killing 17 American sailors and injuring 39 others.
Despite Mr. Al Nashiri’s arrest in 2002, detention at Guantanamo since September 2006 and painstaking assembly of evidence for his prosecution over several years, justice remains denied. It was January 2009 when Defense Secretary Robert M. Gates directed the convening authority for the military commissions to stop referring cases for trial, including his case. Now, charges against Mr. al-Nashiri originally written to reflect “organizing and directing the bombing of the USS Cole” are no longer “either pending or contemplated.” Instead, his case suggests prospects for more military trials for Guantanamo detainees have all but ground to a halt.
In announcing the decision, a Pentagon spokesperson insisted the dismissal of charges against Mr. al-Nashiri “without prejudice” doesn’t mean his case is over. True enough, but it is reasonable to assume that Mr. al-Nashiri likely will not soon appear before a military commission during an Obama administration. The explanation for why justice remains unfinished can only be objectively understood as political.
It is no state secret that the antiwar, civil-liberties left wing of President Obama’s political support base is disappointed with him for not yet fulfilling campaign promises to close Gitmo, prosecute former George W. Bush administration officials and hold civilian trials. The Obama administration does not want to proceed against high-profile prisoners without viable prospects for promised “Article 3” civilian trials - think Khalid Shaikh Mohammed in Lower Manhattan - lest Mr. Obama be seen as not serious about closing Gitmo. If new military trials began at Guantanamo instead of “Article 3” trials in a stateside courtroom, the president would be shorn of his credibility by his political base, including some of its more colorful members.
Not long ago, another Democratic president stalled the pursuit and prosecution of terror suspects from a major attack because of politics, albeit international. In the years following the even deadlier 1996 terrorist truck bombing of the Khobar Towers barracks in Saudi Arabia, the Clinton administration did not pursue, prosecute or punish the Khobar bombers. In fact, not until early 2001, with the Bush administration in office and only days left before some of the charges would have lapsed because of the expiring statute of limitations, was an indictment handed down by a federal grand jury against 13 named Khobar suspects. That indictment also happened to highlight a robust Iranian connection that the Clinton administration had subordinated to its preference for improving relations with a supposedly “more moderate” Iranian regime. Consequences of that Clinton decision as the price for prospects of improved relations with Iran still reverberate.
Almost a decade after the Khobar bombing, it was former FBI Director Louis J. Freeh who remained doggedly vocal in pursuit of the bombers. In a 2006 Wall Street Journal Op-Ed column on the 10th anniversary of that bombing, he lamented, “Two of the primary leaders of the attack … [were] living comfortably in Iran with about as much to fear from America as Osama bin Laden had prior to September 11.”
The planned and organized terrorist attacks against both the USS Cole and Khobar Towers were nothing less than acts of war. If it is a matter of national honor for the U.S. military to recognize properly the sacrifices of the battlefield fallen, then it must closely follow that no one committing such terrorist acts against the American military can do so with impunity. Terrorists cannot be allowed to escape justice and consequences, regardless of our domestic or international politics. There can be no statute of limitations, and this nation must communicate to terrorists, their sponsors and sometimes even other Americans that we do not forget.
Today, it should anger all Americans that a terrorist like Mr. al-Nashiri, the suspected planner behind one of the most infamous terrorist attacks against American forces abroad, stands uncharged, let alone not prosecuted, 10 years later. The one bright spot is that he remains in U.S. custody.
Moral, legal and practical questions for vigorous U.S. responses to transnational terror can be many, complex and often frustrating. However, those responses can be expedited if our elected leaders would leave the political baggage, domestic or otherwise, at the door. If this nation is serious about bringing terrorists to justice, Americans must demand that their government take all necessary and timely measures to pursue, prosecute and punish people like Abd al-Rahim al-Nashiri and the Khobar Towers bombers.
Chris J. Krisinger is a retired Air Force colonel who works for a defense contractor in Northern Virginia.