Four and a half years after Sept. 11, we are still struggling to decide whether this "War on Terror" should be fought in courts, on a battlefield, or in some black hole in between. The government uses courts to prosecute low-level terrorists: the guys who trained at camps in Afghanistan, or played paintball in the Virginia woods. But it uses the rules of war, modified for its own convenience, to indefinitely hold the ringleaders either at Guantanamo or at so-called "black sites" around the world. Those black sites were appealing precisely because the government intended to hold no trials. There was never a plan for what would happen next.
For years now, the government has been holding key plotters and participants in the attacks of 9/11. People from Khalid Sheikh Mohammed—considered by the 9/11 Commission to be the "principal architect" of the attacks—to Ramzi Bin al-Scheib, the alleged paymaster. People like Abu Zubaida, one of Osama Bin Laden's chief recruiters, and Mohammed al-Qahtani, the man alleged to be the real "20th hijacker." These men, and other "big fish" like them, have been held for interrogation that may have amounted to torture—be it Mohammed's alleged water-boarding, or sexual degradation and sleep deprivation. They long ago exhausted their intelligence value. And now, if the government is finished with them, we the people should get a crack at them. Americans are entitled to their Nuremburg. It's time for these men to be put on trial. It's time for us to see their faces, hear their sick stories, and to expose their twisted logic. Bringing such men to justice may not heal the wounds of 9/11. But knowing that they were tried and held to account may help us move on.
There are three main arguments against trying the real ringleaders of the 9/11 attacks. The first is something of a truism among legal commentators and scholars: These men cannot be tried because they were tortured, which immunizes any confessions, and evidence stemming from those confessions, from being used in court. The second argument is strategic: We cannot try these criminals in open court because it would mean divulging critical intelligence information that could threaten national security. The third argument is one of optics: We cannot try these men because it would lead to the disclosure of their torture or not-quite-torture. And that would look bad.
The problem with the legal argument—and, to be fair, it's a point that I have made myself—is that it's a cop-out. Claiming that torture evidence could taint future prosecutions was, initially, a very good argument against abusing captives. But, years after the torture has happened, it's somehow morphed into an argument against holding open criminal trials. The government still has a legal and constitutional burden to afford its prisoners some due process. That doesn't end because it decided to torture them.
The other problem with this legal argument is that it minimizes the glorious reality of federal conspiracy law—a doctrine so flexible as to allow for convictions based on even the flimsiest connection between the defendant and the crime. If criminal conspiracy law allows for a Zacarias Moussaoui to be nearly executed for not disclosing details he did not know about 9/11 (to people who would not have listened anyhow), imagine what prosecutors can achieve with the great heaps of untainted evidence against Khalid Sheikh Mohammed. Even if we were to exclude any confessions tainted by torture, and whatever secondary evidence that may stem from those confessions, we might still have ample evidence to convict most of these ringleaders under federal conspiracy law.
The 9/11 Commission Report is damning in its detail, and prosecutors could certainly start there. Other intelligence information, plus untainted evidence from al-Qaida sources, including Khalid Sheikh Mohammed's nephew Ramzi Yousef—now serving a life sentence for the first WTC bombing—may well offer sufficient connection between these men and the crime. At the very least, it's time we start to figure that out.
Which leads to the second problem: If we excluded tortured confessions, the cases against these al-Qaida big fish would be even more dependent on classified intelligence that the government is reluctant to divulge in open court. But that is not, in itself, a reason to deprive the American people of a trial. The first World Trade Center prosecutions proved that a workable balance can be struck between protecting classified information and affording a fair trial, as did the Moussaoui prosecution. And if, in any given case, it becomes impossible to try ranking members of al-Qaida without undermining national security, the option of a closed court-martial is always available. Either proceeding is vastly preferable to the current system of holding our enemies in dungeons until they die or we forget them.
Which brings us to the final argument against trying the true masterminds of the 9/11 attacks: It will look bad. The defendants themselves will look beaten down. So did the defendants at Nuremburg. The brutality of their treatment will be revealed. As it should be. American judges will be shocked and horrified. One hopes. This administration's decision to unilaterally suspend the Geneva Conventions, and create a culture in which the boundaries of torture are suddenly open to debate by torturers on the ground, will be broadly condemned. It would send a ringing message to our allies and foes that such conduct was and is disgraceful.
No one protested the convictions of the 1993 WTC bombers, and no one protested the convictions at Nuremburg. Will the cases against these men be as strong without the tortured confessions? No. Will we be able to seek and get the death penalty against them? Probably not. But will this country finally have the satisfaction of seeing justice done for the men who planned 9/11? Yes.
It hardly bears explaining why the Bush administration will not launch these prosecutions without enormous public pressure. And there should be enormous public pressure, not because these men deserve these trials, but because we do. These are our monsters, our demons, and we need to see them exposed and punished. And if and when we finally do lock them up and throw away the keys, it should be because we needed justice, not because the president needed to keep ugly secrets.
A version of this article also appears in the Outlook section of the Sunday Washington Post.