Behind the Dropped Charges Against USS Cole Bomber al-Nashiri

Two facts stand out regarding Abd al-Rahim al-Nashiri, the suspected Saudi al-Qaeda operative and Guantanamo prisoner: He is the suspected mastermind behind the Oct. 12, 2000 attack on the USS Cole while the American destroyer was refueling in the port of Aden, Yemen. And al-Nashiri is one of hree men the Bush administration admitted was waterboarded during interrogations.

Last summer the Pentagon charged al-Nashiri with "organizing and directing" the bombing. On Thursday, Susan J. Crawford, the top authority over the para-judicial military commissions the Bush administration created, without precedent, to try Guantanamo prisoners, dropped the charges against al-Nashiri to be in compliance with President Obama's January 22 executive order requiring a review of all detention policies and procedures at Guantanamo and other American prisons in conflict zones.

Ironically, it was exactly a year ago yesterday, on Feb. 5, 2008, that CIA Director Michael Hayden, testifying before the Senate Select Committee on Intelligence, admitted for the first time that the CIA had used waterboarding on Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks; Abu Zubaydah, Abu Zubaydah, an Al Qaeda operative tied to the Sept. 11 plot; and Abd al Rahim al Nashiri.

It was Crawford who, in an interview with the Washington Post on Jan. 14, became the first Bush administration official to say publicly and unequivocally that the administration tortured prisoners at Guantanamo: "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said. But Crawford declined to say -- as newly appointed Attorney General Eric Holder unequivocally did during his confirmation hearings -- whether she considered waterboarding torture.

The question, it seems to me, isn't why the charges are being dropped against the suspected Cole bomber. (I'm not against charging him, and new charges can and should be brought against him; I am against charging him in a medievally conceived system of kangaroo justice, which is what the Bush administration's military commissions were.) The question is why Congress or the Justice Department aren't investigating what, as Jane Mayer searingly argues in The Dark Side, amounts to war crimes.

As the Los Angeles Times wrote last December, " The Bush administration's lawlessness calls for a serious reckoning, one that already has begun with a scathing report by the Senate Armed Services Committee about the role played by Rumsfeld and other officials in the spread of abusive interrogation techniques. That's welcome and appropriate -- and a vindication of American institutions designed to investigate the misconduct of public officials. Further congressional investigation of the administration's spying program is also in order."

The Bush administration's rogue policies have defined the way the United States is perceived, especially in the Middle East. Those policies will continue to define America's image in the Middle East as long as they're not only repudiated, but investigated, fullyt reckoned with, and their perpetrators brought to justice.

In the scheme of things (and with due sensitivity to the survivors of the 17 sailors killed in the Cole attack), the charges against Abd al-Rahim al-Nashiri are a minor matter. Whether he's charged, found guilty and even executed (or not) won't change a thing about American justice and how it's viewed in the world. That damage is done. It can be repaired. The question is whether it will be.