The abrupt reappearance of Khalid Shaikh Mohammed (KSM)—and his brazen comparison of himself to George Washington—four years after the alleged 9/11 mastermind was captured in Pakistan should provoke some serious self-examination in the minds of Americans. The first question we need to ask ourselves is: does the Bush administration have any clue any longer how to fight the "war on terror" legally? The next question should be: can't our next president, whoever he or she turns out to be, do any better than this?
Let's hope so. Because if there is even a shadow of a doubt that the United States is losing the battle for hearts and minds to the self-confessed murderer of 3,000 people—that would be KSM—then something is very wrong. Let's get one thing straight: despite his touching claim that he doesn't like to kill "kids," KSM is a very bad man. Most people frankly wouldn't have much of a problem if he were waterboarded or beaten to an inch of his life in a dark room somewhere—which is almost certainly what happened to him in one of the CIA's secret prisons.
But the fact that four years to the month after he was captured—near Islamabad in March 2003—KSM is just beginning the process of being deemed an "enemy combatant" at the "Combatant Status Review Tribunal Hearing" at Guantanamo Bay shows that something is indeed very wrong. The Bush administration has argued, with some legitimacy, that this is a new kind of war in which new rules are needed. Fair enough. But should it really require all this time, such a complicated series of court decisions and legislative maneuverings, to decide what those rules are?
The issue that the administration confronted after 9/11 was what to do with evil people like KSM. The Bush team decided that this was a war rather than a criminal matter—and a war unlike any other. Therefore, none of the previous rules of war, like the Geneva Conventions protections, applied, in their view. That left culprits like KSM in a legal limbo for four years while they were ferried around to secret prisons, long after their intelligence value had been milked dry (a process that by the estimate of most interrogators should take no longer than a year). Even some CIA officials were privately upset by this, fearing that the agency would be the fall guy in the end (they were right). "Where's the off button?" one retired CIA official said to me two years ago, in February 2005, before the military tribunals that KSM and others are being judged at—at long last—were created. Lawyers for the agency "asked the White House for direction on how to dispose of these detainees back when they asked for [interrogation] guidance. The answer was, 'We'll worry about that later.' Now, we don't know what to do with these guys."
John Sifton of Human Rights Watch says the case of KSM and other key detainees—as well as some who are likely innocent—shows that the Bush administration has simply never defined what kind of enemy KSM is. Sifton adds: "This really is an example of how the war paradigm for counterterrorism—that it is only armed conflict—has backfired. Now we have a man comparing himself to George Washington. It might have been more appropriate to just call him a criminal and indict him in federal court, to say, 'You're no warrior, you're no George Washington. You, sir, are a criminal'."
Scott Horton, another prominent human-rights attorney, agrees. Had the case been handled properly, KSM's confession to plotting 9/11 and many other actual or planned terror acts could have made him a "showcase defendant" for America's cause, rallying support and allies around the world. "He could have been charged within six months of his detention and prosecuted in a proceeding, which would have added to the reputation of our country for justice," says Horton, "and would have supported the righteousness of the cause of going after KSM."
Instead, the legal black hole is only getting deeper. The transcript released Wednesday night indicates that KSM's references to his previous treatment are all carefully redacted. Sifton and others say the redactions clearly indicate that KSM was referring to his secret interrogations—during which he might well have been physically abused. The question of whether such dubiously extracted testimony could be used in any legal proceeding will probably prolong his case for years to come. (Once KSM is determined to be an enemy combatant, he is expected to be tried.)
Sifton notes, accurately, that the administration has been wildly inconsistent over the past six years. Some terror suspects are held without recourse to habeas corpus at Gitmo; others have been prosecuted in the U.S. courts. In one case involving a Pakistani father and son living in New York, Saifullah and Uzair Paracha, the two have been treated completely differently. "The young Paracha is in federal prison. The older is at Gitmo," said Sifton. (The father, Saifullah, was arrested in Bangkok; his son in the United States, both on suspicion of agreeing to help an Al Qaeda operative sneak into the United States to carry out a chemical attack.) "There are no principles guiding this. It would be fine if the "war on terror" were just a metaphor, but it's not," says Sifton.
Now America finds itself with too few allies in fighting the war on terror, often reviled abroad for its inattention to its own standards of justice. Worse, Washington is sometimes identified with the terrorists themselves in the minds of some people around the world. Why? Perhaps KSM said it best in his broken English at his hearing. "Same language you use, I use," he said. The Americans, he declared in his rambling statement, "said every law, they have exceptions, this is your bad luck you been part of the exception of our laws … But we are doing same language … Never Islam give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exceptions of rule when you are killing people of Iraq."
"Same language you use, I use." This, more than anything, is an indictment of the way the Bush administration has conducted this fight since 9/11. To paraphrase Thomas More in "A Man for All Seasons," if we cut down all the laws to get at the devil—as the administration has done against Al Qaeda—then we will find ourselves without protection. This legal and conceptual void has cost America its high moral ground—ground that was so hard-won through so many honorably fought wars (with lonely exceptions like My Lai) during our history.
The Bush administration has maintained from the outset that it could give no quarter to the terrorists, and that unusual methods were required to extract information from suspects in order to pre-empt another attack. But now, by letting KSM and others remain in legal limbo and gradually expanding his definition of the war on terror to include all Islamic "extremists"—among them Hezbollah and Hamas—President Bush may have condemned us to a permanent war. A war in which we are, again, waging an uncomfortably lonely fight, since almost no other country agrees on such a broadly defined enemy.
The next American president will be well advised to replace the "war on terror" with the kind of coordinated effort that the fight always should have entailed. In other words, the hunt for the culprits of 9/11 was never simply a war or a criminal manhunt. It was always both, a hybrid covert-war-and-criminal roundup—one in which clear legal rules should have been set to brand terrorists like KSM as outlaws in the international system. The Geneva Conventions should have been applied; suspects should have had lawyers; cruel, inhuman and degrading treatment should have been expressly prohibited. Only if the next president sets the rules more clearly and does a better job of discriminating who the enemy is can we have any hope of winning.