Khalid Sheikh Mohammed has sat in a military detention cell for 16 years waiting for trial. The accused 9/11 mastermind and his four codefendants face capital charges in a military commission at Guantanamo Bay, yet prosecutors have secured no conviction.
This is the persistent bind: the more serious the terrorism charge, the more cumbersome the legal machinery that blocks conviction.
The culprit is a 2008 Supreme Court decision. In Boumediene v. Bush, the justices ruled 5-4 that detainees in military tribunals have the right to challenge their detention in federal court—the same due process protection available to any U.S. criminal defendant. Justice Antonin Scalia, in dissent, called it an "impossible task" for military courts to manage, particularly when "America is at war with radical Islamists."
The ruling altered how the United States can prosecute terrorism cases. It made military commissions slower, more expensive, and more vulnerable to legal challenge. Trials that prosecutors envisioned lasting months have stretched into years. Motions multiply. Appeals pile up. Defendants' lawyers exploit every procedural opening.
The White House still asserts broad authority to use military tribunals for terrorism suspects held outside U.S. territory. But Boumediene ensures those tribunals operate under a thicker web of legal constraints than they did after 9/11.
Israel now faces the same problem. The country holds approximately 250 members of Hamas's Nukhba unit—the shock troops who led the Oct. 7 incursion and massacred civilians. Prosecutors accuse them of mass murder, rape, and abductions. Yet no trials have begun. The Israeli government is wrestling with whether to prosecute them in civilian courts, military courts, or administrative detention—knowing that either choice will trigger years of legal combat.
The stalemate reflects a real conflict between national security and the rule of law. Democratic countries cannot simply lock people away without trial, even people accused of atrocity. But the procedural rights that protect the innocent also shield the guilty and consume vast judicial resources.
That tension has no clean resolution. Both the U.S. and Israel must choose between moving fast and staying just.
