Don’t Put Terrorists on Trial

July 16, 2014

3 min read

The Obama administration has brought an accused Libyan terrorist named Ahmed Abu ‎Khattala to Washington for trial. His saga reveals how the government views the Islamist ‎threat, and it’s discouraging. Fortunately, a much better alternative exists.‎

Abu Khattala stands accused of taking part in the murder of an ambassador and three ‎other Americans in Benghazi in September 2012. After an achingly slow investigation, ‎during which time the suspect lived in the open and defiantly gave media interviews, the ‎American military seized him on June 15. After being transported by sea and air to ‎Washington, D.C., Abu Khattala was jailed, provided with a defense attorney, Michelle ‎Peterson, indicted, arraigned, and, after listening to an Arabic translation of the ‎proceedings, pleaded not guilty to a single charge of conspiracy and requested a halal ‎diet. He potentially faces life in prison.‎

This scenario presents two problems. First, Abu Khattala enjoys the full panoply of ‎protections offered by the U.S. legal system (he actually was read his Miranda rights, ‎meaning his right to stay silent and to consult with a lawyer), making conviction ‎uncertain. As The New York Times explains, proving the charges against him will be ‎‎”particularly challenging” because of the circumstances of the attacks, which took place in ‎the midst of a civil war and in a country brimming with hostility to the United States, ‎where concerns about security meant that U.S. law investigators had to wait for weeks to ‎go to the crime scenes to collect evidence, and the prosecution depends on testimony ‎from Libyan witnesses brought over to the United States who may well falter under ‎cross-examination.‎

Secondly, what good does a conviction bring? If all goes well, a minor operative will be ‎taken out of commission, leaving the ideological sources, the funding apparatus, the ‎command and control structure, and the terrorist network untouched. A years-long, ‎cumbersome, expensive, and draining effort will prove a point, not damage the enemy. If ‎Abu Khattala is convicted, administration officials can crow but Americans will be only ‎marginally safer.‎

This futility recalls the 1990s, when terrorist attacks were routinely treated as criminal ‎incidents and handled in courts of law, rather than as warfare to be dealt with using ‎military force. In response, I complained in 1998 that the U.S. government saw terrorist ‎violence “not as the ideological war it is, but as a sequence of discrete criminal incidents,” ‎a mistaken approach that turns the U.S. military “into a sort of global police force and ‎requires it to have an unrealistically high level of certainty before it can go into action,” ‎requiring it to collect evidence of the sort that can stand up in a U.S. court of justice.‎

George W. Bush discarded the criminal paradigm when he dramatically declared a “war ‎against terrorism” in the evening of 9/11. While that is a clumsy phrase (how can one ‎make war on a tactic?), what became known as the Bush Doctrine had the great benefit ‎of declaring war — as opposed to a police action — on those attacking Americans. But ‎now, 13 years later and in part because of the success of this war, the Obama ‎administration has reverted to the pre-9/11 approach of apprehending criminals.‎


Instead of this, the U.S. response to terrorist attacks on Americans citizens should be ‎immediate and lethal. As I wrote 16 years ago, “Anyone who harms Americans should ‎know that retribution will be certain and nasty. … When reasonable evidence points to ‎Middle Eastern terrorists having harmed Americans, U.S. military force should be ‎deployed. If the perpetrator is not precisely known, then punish those who are known to ‎harbor terrorists. Go after governments and organizations that support terrorism, not just ‎individuals.”‎

Skip the fine-grain analysis of who carried out the attack. Security depends not on ‎complex court procedures, but on a record of U.S. deterrence established by “years of ‎terrible retribution against anyone who so much as harms a single American citizen.” ‎Enemies must expect to face the full fury of the United States when they harm its ‎citizens, thereby dissuading them from committing such attacks in future.‎

American taxpayers turn over $3 trillion a year to the federal government and in return ‎expect to be protected from foreign threats. This holds doubly for citizens who venture ‎abroad on behalf of their country, such as the four embassy personnel killed in Benghazi.‎

Crimes require rules of evidence, Miranda rights, lawyers, judges and juries. Warfare ‎requires full-throated retaliation by the American military.

Reprinted with author’s permission


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