Justice Delayed

The Obama administration has been vigorously criticized for a hesitating, inconsistent, slow, and confused response to the deadly attack on the consulate in Benghazi. But the record suggests that hesitation may be more the norm than the exception. Difficulty in attributing responsibility for terrorist attacks has always been an obstacle to responding effectively — no matter how strong the desire to do so. Attribution needs to be both timely and credible, but these two requirements are often incompatible. It takes time to identify the perpetrators — and, even then, history shows that it’s not always possible to bring them to justice.

Clearly, the circumstances in Benghazi are going to make attribution difficult. The attack occurred amid high insecurity following rapid changes in authority. The actors involved are multiple, shifting, and fragmented. Their allegiances are uncertain, probably obscure even to themselves. Al Qaeda is involved in some way but is not in control. Leaving aside the question of whether the FBI’s methods and mission are appropriate for the task, the situation is so volatile and dangerous that its official investigation has to be conducted from a distance. The scene of the crime, so to speak, has already been contaminated. It is difficult to see how evidence can be gathered and the perpetrators identified with any confidence, no matter how intense our effort.

Indeed, even in much more favorable circumstances, the United States has had significant trouble with attribution and punishment. A memorable case is the 1996 bombing of the Khobar Towers Air Force housing complex in Saudi Arabia, which killed 19 American military personnel and wounded hundreds more. President Clinton promised swift justice; no stone would be left unturned, he said. The trail led to Iran and Hezbollah, but Saudi Arabia was reluctant to cooperate with the FBI investigation. The Saudis wouldn’t allow even allow American agents to interview suspects until — at FBI Director Louis Freeh’s request — George H.W. Bush personally intervened with Crown Prince Abdullah.

But blaming Iran didn’t seem politically wise at the time since the United States had hopes for a moderating trend in Iranian internal politics, and Saudi Arabia was not keen on supporting the charge. (It didn’t help that American policymakers were also divided about attribution. Some insisted that Osama Bin Laden was responsible — an idea the 9/11 Commission later hinted at as well.) Eventually, suspects were indicted in the United States — under the George W. Bush administration — but they weren’t tried. In 2006, ten years after the bombing, a lawsuit against Iran filed by survivors of the victims was thrown out by the presiding judge for lack of evidence. Freeh testified on behalf of the plaintiffs, to no avail. So, in the end the process was neither swift nor conclusive.

Another prominent case with a confusing aftermath is the 2000 bombing of the USS Cole, which killed 17 Navy personnel and inflicted massive damage on the ship. Efforts to establish a case were slow and frustrating — it was months before the United States was reasonably sure that al Qaeda was to blame. The Yemeni authorities were even less cooperative than the Saudis, and the FBI investigation was short and unpleasant on all sides. Ambassador Barbara Bodine objected to the methods employed by the FBI and even denied agent John O’Neill re-entry into the country after he went home for Thanksgiving. (O’Neill was killed in the attack on the World Trade Center the next year.) Contentious issues apparently included the conduct of property searches and interviews, and critics charged the FBI sent too many agents with too few cross-cultural skills. Over the years, Yemen allowed suspects it had detained to escape, or it simply released them from prison. In 2007, American courts finally held Sudan responsible for the bombing. After 2002, several of the suspected perpetrators were killed in unilateral drone strikes, most recently in May of this year. Since the Obama administration does not publicly explain its grounds for choosing drone targets, we can only rely on press reports to judge whether it got the right guys.

An intriguing failure to establish attribution despite years of effort involves the 1985 bombing of the El Descanso restaurant outside of Madrid, not far from the American-leased air base at Torrejon. This case didn’t officially involve American authorities, since no U.S. military personnel were killed (although some were wounded). The attack also occurred before passage of the Omnibus Diplomatic Security and Antiterrorism Act of 1986, which expanded American jurisdiction over terrorist attacks against American citizens abroad. It is possible that American soldiers were the targets and the actual victims (18 Spanish killed and over 80 injured) were unlucky bystanders.

There were multiple claims of responsibility as well as multiple accusations (both ETA and Hezbollah were named, in addition to the Popular Front for Palestine-General Command), resulting in two inconclusive court trials. The first closed without result in 1987, and the second opened in 2005 following the discovery of new evidence implicating Abu Musab al-Suri, the famous jihadist ideologue. In 2005, the United States captured al-Suri in Pakistan and in 2006 turned him over to his country of origin, Syria, but he was apparently released in December 2011. U.S. officials do not comment on these transfers, but it could be that the CIA thought Syria could obtain information that they could not — or at least that he would be kept out of commission without Washington having to talk about his whereabouts or treatment. Syria’s motives for releasing him are mysterious, since Sunni jihadists and the Assad regime are at odds. He has not presented himself to Spanish authorities.

Tuesday, the New York Times reported that the CIA and Joint Special Operations Command are preparing "target packages" for killing or capturing those responsible for the Benghazi attack if and when the president gives the order. Drawing up a list of possible targets in Libya is prudent contingency planning. Bringing the perpetrators to justice or justice to them is another story.