“These problems pre-existed 9/11, this question of what are the proper array of options for incapacitating a dangerous person,” says Robert Chesney, a law professor at University of Texas at Austin who worked on detention policy in the Obama administration.
The U.S. military’s detention facility at Guantánamo Bay remains open and its justice system ineffectual; air strikes on terrorism suspects have disrupted dangerous plots but have also engendered bitterness and helped foment radicalization. In Syria, where U.S.-backed Kurdish forces are holding hundreds of isis suspects from dozens of countries—including in the Middle East, Europe, and the United States—a new test is coming. The Kurds can’t hold them indefinitely, and absent some plan for what to do with them, they could be sent home to regimes that will torture them—or might simply walk free to help isis rebuild just as the U.S. is leaving.
Read: The danger of Yemen’s secret prisons
“The most reliable system, by far, by any measure is criminal prosecution,” Chesney told me. Over the period Nashiri has been in Guantánamo, for instance, American courts have produced more than 600 terrorism-related convictions; Guantánamo has had only a handful, and Nashiri himself hasn’t even been brought to trial. So once a terrorism suspect is captured, criminal prosecution is far more efficient than a military commission at Guantánamo, but Chesney noted it’s not always feasible to apprehend a terrorism suspect regardless, for instance when doing so might be too dangerous.
In the Cole case, the spectrum ranged from military detention, to proxy imprisonment, to lethal force. The crime at the center was grave. The Navy destroyer was part of a mission to enforce sanctions against Saddam Hussein’s regime in Iraq and had stopped to refuel at the Yemeni port city of Aden on October 12, 2000. A skiff bearing two suicide bombers approached it and blew up, ripping a hole in the ship and killing 17 sailors. Barbara Bodine, the U.S. ambassador to Yemen at the time, recalled of seeing the ship afterward: “It was like seeing a wounded eagle. It had that sense of violation and tragedy.”
Al-Qaeda had already been targeting the U.S. for years at that point, notably with the 1993 World Trade Center bombing and the 1998 attacks on the U.S. embassies in Kenya and Tanzania. But the Cole attack secured al-Qaeda’s highest American death toll to that point. The lack of U.S. retaliation in the aftermath also directly encouraged the September 11 attacks, the 9/11 Commission later found. Osama bin Laden had been expecting a military response to the Cole bombing, and when none came, he became convinced that he had to try something bigger.
Read: Is Guantanamo a terrorist recruitment tool
Nashiri was the alleged field commander, acting at bin Laden’s direction and with his funding. He spent months observing the activity of U.S. naval boats in the Red Sea and personally recruited the two suicide bombers, according to a Defense Department memo. Apprehended in Dubai two years later, he became the subject of an early U.S. experiment in dealing with terrorism suspects: He ended up at a CIA black site, where he was tortured and then shipped to Guantánamo Bay. His case remains bogged down in pretrial hearings; at one point his defense team quit in protest after claiming their communications with him were being monitored. He has been charged with war crimes but has yet to see a trial.