RUTHFULLY YOURS

Notwithstanding the dozens of Islamist plots uncovered in the United States since 9/11, the criminal-law paradigm is again limiting the U.S. response. Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing, was supposed to be tried before a military commission at Guantanamo last summer. Instead, on a summer Friday afternoon, the Justice Department filed a brief in another case disclosing that there are no charges pending against al-Nashiri, which is to say the military commission proceedings against him have been halted.

Although the White House promised to disclose the forum in which Khalid Sheikh Mohammed and other 9/11 plotters would be tried, after their initial choice of New York was hooted down, subsequent announcements remained inconsistent for a time.  Faced with legislation that barred the use of federal funds to try Guantanamo detainees in the United States, Attorney General Holder announced reluctantly on April 4, 2011, that KSM and others would be tried by military commission after all. However, in July 2011, he disclosed that a Somali suspect, Ahmed Abdulkadir Warsame, who had been captured abroad and held on naval vessels rather than at Guantanamo, would be brought to the United States and tried in a civilian court. Notably, Warsame, unlike Shahzad and Abdulmutallab, was reportedly debriefed extensively following his capture by the high-value interrogation team promised at the time the CIA interrogation program was abandoned in 2008. The interrogation techniques, however, are still limited by the Army Field Manual.

Moreover, military officials have conceded candidly that we have no detention program; we simply improvise from one capture to the next. It is true that Guantanamo remains open, but it is also true that President Obama remains as committed as ever to closing it. He seems determined to figure out a way to release those detained there despite a growing body of evidence that alumni of Guantanamo have returned to terrorism. A recent example is an interview with Sheikh Abu Sufyan al-Azdi, deputy commander of al-Qaeda in the Arabian Peninsula, a group based in Yemen, published in the October 2010 issue of that organization’s English-language magazine. Abu Sufyan was released from Guantanamo and turned over to the Saudis for participation in their vaunted reeducation program, but made his way to Yemen to resume his jihadi activities. In the interview, he urges Muslims to emulate Nidal Hasan, the Fort Hood shooter, and Abdulmutallab, the airplane bomber.

Abu Sufyan is by no means the first alumnus of Guantanamo to return to the battlefield. In March 2010, the supreme leader of the Afghan Taliban announced that he was promoting mullah Abdul Qayyum Zakir to replace a top deputy captured  by U.S. forces; Zakir had also been in detention at Guantanamo, and was released to the Afghanis. In fact, more than 20 percent of those released from Guantanamo have returned to the battlefield and, of course, those are only the ones we know about because they have been recaptured or killed. How many others remain in the fight is anyone’s guess.

It has become increasingly obvious since 2009 that the administration is resolutely opposed to looking at militant Islamism squarely, whether in its terrorist manifestation or otherwise. For example, in 2010 at the Center for Strategic and International Studies, deputy national security adviser John Brennan said that this talk of a war on terrorism or on terror is highly misleading, because terrorism is simply a tactic and terror is a state of mind. Brennan cautioned against describing our enemies as jihadists because jihad, as he put it, “is a holy struggle, a legitimate tenet of Islam.” And then, just so no one missed the point, he said that jihad actually means something innocuous. It means simply, as he put it, “to purify oneself or one’s community.”  

Brennan, by the way, believes that the 20 percent–plus recidivism rate for those released from Guantanamo is not bad because it compares favorably with the rate of U.S. prisons.

— Michael B. Mukasey served as attorney general of the United States under Pres. George W. Bush from 2007 to 2009. Prior to being appointed attorney general, he served as an assistant U.S. attorney for the Southern District of New York, and then became a federal district court judge for the Southern District of New York from 1988 to 2006. This essay is excerpted from the new Encounter book, Confronting Terror: 9/11 and the Future of American National Security