Khalid Sheik Mohammed: Once the Face of Terror, Now the Face of Failure

Exactly one year after the Obama administration triumphantly announced plans to prosecute him in federal court in New York, 9/11 architect Khalid Sheik Mohammed is back in the news -- and for all the wrong reasons. In 2003, when he was captured, he was the face of terror. In 2005, when we learned about waterboarding, he was the face of torture. And now, left in limbo by Congress, he's the face of failure -- Washington's lingering failure to dispose of his case, if not his cause, through some sort of legitimate trial.

Mohammed still hasn't been indicted, much less prosecuted, and if anything his legal status and earthly fate seem even cloudier than they were last November. Last weekend, in a sign of the political times, the Justice Department noted the anniversary by appearing to sound full retreat on the most practical way forward -- a federal civilian trial for Mohammed. Not until 2013 at the least, says the official and unidentified source. The feds also have signaled reluctance to move him back into the queue for a military tribunal. Nine years after President George W. Bush commissioned those proceedings for terror detainees, they still aren't working with any certainty or consistency. Remember the good old days when people worried about too much executive power?

Meanwhile, on Capitol Hill, lawmakers aim to mark in March another notable Mohammed anniversary -- his eighth year in American custody without a trial -- with a round of cheap political theater. Rep. Peter King (R-N.Y.), who will likely head the House Committee on Homeland Security, already has promised hearings on the Mohammed case and the years-long push (by both the Bush and Obama administrations) to close the terror-law prison at Guantanamo Bay, Cuba. I'm not expecting much forward-looking talk from the panelists or the politicians. The tone of those hearings instead is likely to be critical of the Obama administration for its terror-law policies (which are starkly similar to those of its predecessor) and supportive of the case against the closure of Gitmo, a case so bereft of sense that even President Bush himself abandoned it in the last years of his presidency.

Rarely missing an opportunity to miss an opportunity, congressional leaders won't instead be using 2011 hearings on terrorism law to foster a candid national debate over precisely why so many of our lawmakers, Republicans and Democrats alike, have suddenly lost their nerve when it comes to prosecuting terrorists in federal court. Sen. Charles Schumer (D-N.Y.), for example, whose beloved Gotham has seen hundreds of safe and successful terrorism trials over the years, has aggressively lobbied over the past year against a Mohammed trial in Lower Downtown. Not in his back yard. Ditto for Michael Bloomberg, the famously "independent" mayor of New York City. And for scores of Republicans on Capitol Hill who didn't utter a peep of protest when the Bush administration tried and convicted terror suspects after the Twin Towers fell.

After a raft of successful terror prosecutions, which were hailed both in New York and on Capitol Hill, why are legislators now effectively vetoing Justice Department prosecutions by withholding money for them? Why is the toughest city in the world shying away from a trial for a person charged with its worst crime? Is it about the cost of security? Is it fear of retaliation to the host city? Is it a concern about setting bad legal precedent? Is it a matter of principle, that a man like Mohammed shouldn't get the same rights as everyone else? Is it the still-potent emotional response to 9/11? Is it all of the above? What's changed? Alas, we likely won't get good answers to these questions. Or this one: If the feds could have successfully prosecuted the "Shoebomber" (RIchard Reid), the "20th hijacker" (Zacarias Moussaoui), the "dirty bomber" (Jose Padilla) and the "Times Square bomber" (Faisal Shahzad), why can't they successfully prosecute the "9/11 mastermind" himself?

But King and Company alas won't likely be calling to testify at the 2011 hearings any of the brave and dogged federal judges around the country who have presided over terror trials since 9/11. Those jurists would be brilliant and unimpeachable witnesses in support of the argument that the civilian justice system is perfectly capable of handing the Mohammed case in a constitutional manner without jeopardizing national security interests. So, too, would the federal prosecutors working out of the Justice Department who have so aggressively tried accused terrorists. They'd testify: We've done it before, we'll do it again. Treating Mohammed like a terrorist has gotten us nowhere, these dedicated government lawyers would say; treating him like a criminal will quickly get him a cell at the Supermax prison near Florence, Colo., or a suite at the federal execution chamber in Terre Haute, Ind.

Nor will Rep. King's hearings next year likely highlight the culpability for this mess shared by the many federal lawmakers still in office today who endorsed the very Bush-era policies -- like torture -- that now bedevil federal lawyers as they contemplate a constitutional prosecution of Mohammed, who was waterboarded repeatedly. It's easy now to gloss over the ugly partisan dynamics in play half a decade ago. But this much is clear: when the Bush administration finally came to Capitol Hill to seek legislative authority for terror detainee policies, the lawmakers stubbornly refused to do the right thing. Even after the Abu Ghraib scandal broke, even after the "torture memos" became known, the Congress caved to White House pressure. It cowered before the intelligence community. It rejected the spirit, if not the language, of the Supreme Court's landmark 2004 ruling in Hamdi v. Rumsfeld.

It helped create some of the very problems of which it now complains. Instead of authorizing fair tribunal rules which by now would have processed Mohammed and his fellow detainees out of Gitmo, the Congress gave us instead the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, two half-hearted and unproductive pieces of legislation which were promptly gutted by the Supreme Court in Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008). In other words, Congress wasted four years of everyone's time and money trying to weasel its way around the Supreme Court's rulings that recognized or protected the rights of terror detainees like Mohammed. And now lawmakers want to delay the disposition of the Mohammed case for a few more years yet because treating Mohammed like a criminal is considered "soft" in the war on terror. The kid who shot his parents now is complaining about being an orphan.

No matter where this debate finds you, the truth is that another year has come and gone and still Mohammed has not been dispatched to the dustbin. Eight years after his celebrated capture, and with only a few months to go before the 10th anniversary of his monstrous crime, Mohammed still hasn't faced justice. This is a failure of leadership. It is a failure of government. It is a failure that historians will cite as further proof that we are still as a nation so many years later profoundly dazed by the events of Sept. 11, 2001.