What's Driving the Passion Behind JASTA?

In all the debate over the Justice Against Sponsored Terrorism Act (JASTA), the hardest argument to ignore has been from the victims of the September 11th attack. The moral and political clout of this group is unquestionably why a Congress that cannot pass a routine budget was able to overwhelmingly override a presidential veto to ensure that JASTA became law. On its face, the legislation was held up as the only means of providing victims of the September 11th attack the ability to hale foreign governments, such as Saudi Arabia, into court for their purported complicity.

Steve Vladeck has written a number of posts about how JASTA actually falls short of this goal, and others have argued over whether or not this goal should even be pursued. Steve made those arguments persuasively on the Diane Rehm Show Thursday.

Without taking anything away from Steve, the most compelling part of the show was the guest who preceded him. Terry Strada, the national chair of the 9/11 Families & Survivors United for Justice Against Terrorism, lost her husband in the attacks. She has been a major advocate for JASTA and when asked about her reaction to its passage on Wednesday, Strada said, "It is so important to us to have the ability now to pursue justice, just like any other United States citizen has the right to do, to pursue justice in the U.S. court of law. So we're thrilled that the bill passed."

Who could disagree with her? For the past fifteen years, the closest thing to a prosecution for the September 11th attacks was against the deranged nobody, Zacarias Moussaoui. Sure, there have been numerous government commissions to reconstruct the events in excruciating investigatory detail. Bin Laden was even shot dead. But Strada spoke to a gnawing lack of closure that she still feels as someone intimately wounded by the attack and that I suspect is shared by most Americans who are old enough to remember where they were on that particular Tuesday morning. She spoke to it on the Diane Rehm Show far better than I ever could:

[The passage of JASTA] eases the part where you wake up in the morning and go to sleep at night and you know that the people that killed your husband have completely gotten away with it. And now when I wake up, this morning, I said, the people that killed my husband, they actually will be held accountable. It's a very different feeling. It's a very satisfying feeling, and it's the right thing to do for mychildren and for our country.

In the American mind, there is something uniquely powerful about a trial in a court of law. One side makes its case against the other in a battle whose ultimate victor is the truth. The failure to bring the perpetrators of September 11th into a real courtroom for the past fifteen years has meant that the victims' families and the country as a whole have been denied this opportunity for a battle-tested truth, and as a result, denied the opportunity for closure.

It should therefore not be a surprise that suspicions have only deepened and conspiracy theories proliferated, extending far beyond the Saudi government's possible involvement in the attacks. Were the airplanes actually holograms to conceal a controlled demolition of the World Trade Center? Did any Jews die in the attacks? Was Dick Cheney given advance warning, which he ignored in order to start a war in Iraq?

Absurd, yes. But I have heard surprisingly intelligent and informed people make all of these speculations aloud. And I suspect that is because no matter how many government investigations are conducted into to the events of September 11, 2001, the lack of a real trial in which every crackpot theory and line of argument can be tested through the crucible of truth leaves all doubts--reasonable and unreasonable--on the table.

Why hasn't there been a trial? It was an elephant in the room that no one, not even Steve, brought up on the Diane Rehm Show: There is a September 11th prosecution that has floundered for nearly nine years in the military commissions in Guantanamo.

When originally conceived, trying the September 11th conspirators before a war crimes tribunal had echoes of Nuremberg. A crime of such a great scale deserves a trial to match it. But as it happens, this past Saturday marked the seventieth anniversary of the conclusion of the trial of the major war criminals at Nuremberg, a mere eighteen months after the declaration of victory in Europe and less than a year after the trial itself began. The trial of the alleged September 11th conspirators in Guantanamo, by contrast, is unlikely to even begin until 2020.

Regardless of the verdict that this all may yield two decades after the attacks, my guess is that it will not bring closure. Because whatever else the military commissions have become, they are not a crucible of truth. Bogged down by legal uncertainty and a paranoid fixation on secrecy (mostly over issues dealing with the torture of the defendants), the proceedings against Khalid Sheikh Mohammed and four others neither are nor appear to be a reliable source for the truth. Like Fred Goldman's heroic pursuit of O.J. Simpson's assets, the victims have sought alternatives for justice denied. And the great importance that they have placed on getting JASTA enacted betrays the rarely spoken fact that no one still believes that the military commissions provide the most valuable thing the law can give to any victim: a day in court.

(Full disclosure: I have represented Guantanamo detainees in my current capacity as Defense Counsel for the Office of the Chief Defense Counsel. My views are my own and do not reflect those of the Department of Defense or the U.S. government.)