We are paying the price for inserting our legal system into a war.

Taking into consideration the two-tiered argument, I still say a military trial isn't a bad idea. KSM is an enemy combatant at a time of war. We should recognize him as such and try him under military law. What I think is cowardly is this administration pussy-footing around that concept and saying each of these "acts of terror" resulted from individuals committing domestic crimes (as opposed to seeing them as POW's captured during their grass-roots military siege.) In some ways our military and a good portion of the American people understand this new form of war, but the official message is being choked by the vomit that is suicidal PC politics.

Lauren, methinks you missed the point of the piece.

I didn't read the Lithwick article, so I don't know if this point is covered or not, but the idea of a military tribunal certainly has precedent. This Wikipedia article about Operation Pastorius describes how the Germans planted eight saboteurs on U.S. soil in 1942, how two of the saboteurs surrendered to the FBI, and how all eight were tried by a military tribunal and sentenced to death (President Roosevelt commuted the sentences of the two who surrendered).

Discussion questions:
- How do the two cases (9-11 and the Pastorius saboteurs) differ? Are the similarities sufficient to justify the use of a military tribunal in the case of Khalid Sheikh Mohammed?
- Was the Roosevelt administration correct in using a military tribunal in 1942 (there were arguments even then about having a civilian trial)?

While it is certainly true that the Administration is both stupid and cowardly, it would be equally stupid to try enemy personnel in civilian courts. These terrorists are fortunate to be tried at all. They are not members of a national military force and not subject to the Geneva convention.

Old RPM Daddy, George Washington gave British Major John Andre a military tribunal, then hung him for being a spy after being found with documents describing the fortifications at West Point.

>> She notes that these claims could all have been made about numerous famous trials, including the Scopes Monkey trial and Julius and Ethel Rosenberg's trial.

Is she in 6th grade?

I wonder how much Dalia Lithwick knows about the UCMJ, the military justice system, and the history of War crimes trails after World War II.

Having lived under the UCMJ for 8 years, I can say with certainty that if I was not guilty, I would rather take my chances there than in federal court. Smarter juries is only one reason.

Those like Lithwick with no exposure to the military justice system think that it is some kind of "second class justice system".

It is not, it is a first class justice system, in all ways more fair and better run than our civilian courts at both the federal and state level.

I blame Obama for being a hypocritical panderer in promising to close Gitmo, and try terrorists captured on the field of battle in Federal court.

I don't blame him, for finally reaching the correct position on how you handle these people.

It would be more meaningful if he could occasionally squeak out those three little words. "I was wrong"

A few things
1. Khalid Sheikh Mohammed is not an american citizen

2. Khalid Sheikh Mohammed was not arrested by civil authories within sovrign US territory

3. Khalid Sheikh Mohammed by his own admision is at war with the United States

4. Khalid Sheikh Mohammed was captured in a foriegn country by forgien agents and turned over to the US as part of the war against Al-Queda

None of these facts are in dispute, Khalid Sheikh Mohammed is not entitled to a civil criminal trial.

He is a prisoner of war, and as we are not at war with his nation, but a multi national terrorist group with no offical ties to any government, and whose only stated goal is to enslave al of humanity, we have no one to return him, or his body to.

Technically given our treaty obligations he should be turned over to The Hauge, although for the life of me I cant understand why the Ineternational Military Tribunal was disbanded for a civil international court

And if he was tried in the civilian legal system, what would happen to all of the classified (as a matter of national security) evidence during the discovery process?

The biggest danger in trying KSM in civilian court is not that he might go free, or that it again makes NYC a magnet for terrorist attacks, but that it would give legal precedent for the "enhanced interrogat­ion techniques­" used on him.

KSM should think himself lucky he's not Abu Nidal. Depending on whose story you believe, he was sheltered by/entered Iraq illegally before the 2003 invasion. Then he mysteriously got shot right before that happened.

The official report was suicide. Of course, it couldn't have had anything to do with his presence being very embarrassing for a government claiming to have nothing to do with terrorists.

A military tribunal doesn't seem quite so barbaric after that.

Military tribunals are not kangaroo courts.

Military tribunals for captured enemy combatants at Guantanamo were initiated in response to the Red Cross' concern that open-ended incarceration was cruel and unusual punishment.

Prisoners of War know they will be released when the hostilities are over. Prisoners in our legal system know when their sentence will end. Captured non-uniformed enemny combatants at Guantanamo did not know when their incarceration would end.

Military tribunals were a response to this concern. Civilian courts were ruled out due to the fact that the liberal rules of discovery would mean releasing information such as the names of informants, locations of agents, details of covert ops, etc.

In addition, the prisoners at Guantanamo, as lujip points out above, are not US citizens, were captured on the battlefield or in foreign intelligence operations, and consider themselves in a state of war with the US. Most of them were not read their Miranda rights (if they were even entitled to them).

no, the obscenity was thinking there could BE a civilian trial, when KSM is not ENTITLED to one. I think both the writer and Lisa, have missed the point.

This guy has no standing to be tried as a civilian.

The illusion that he ever did, was a problem that the administration made for themselves. The opinions of the islamic world shouldn't come into this, because they change their minds with the wind, and depending on who is speaking.

From the Fifth Amendment (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, EXCEPT in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger...

Do you & Ms Lithwick really believe the Founding Fathers intended to subject American citizens in uniform to kangaroo courts and second-class justice? Or that foreign terrorists captured while plotting acts of war against the US are more entitled to civilian court trials than American citizens in uniform? If you find the whole idea of military tribunals offensive & unconstitutional, take it up with Madison & Jefferson.

Prisoners of War know they will be released when the hostilities are over.

Well, Conan that's not true. What POWs knew was that they would be returned to the jurisdiction of their original country when hostilities were over. Which if you ask Soviet prisoners from WWII is definitely not the same as being released.

Irrelevant to the current discussion, but an important point nonetheless. A good question is - if you were going to release KSM, who would you hand him over to?

Generally I agree with you, and SwissArmyD.

It won't stop here. Putting the administration's imprimatur on the idea that some defendants are more worthy of real justice than others legitimates the whole creeping, toxic American system of providing one class of legal protections for some but not others: special laws for children of immigrants, special laws for people who might look like immigrants, different jails for those who seem too dangerous, special laws for people worthy of wiretapping, and special laws for corporations.

I did read this article and found it unconvincing. Where's the creep? The line is very clear. Citizen = entitled to civil trial. Non-citizen = not. And I'm not a citizen of the US so I have no vested interest here. I don't see the special laws for children of immigrants - aren't those what you would call citizens? Name ten who have been denied their rights.

What irritates me most in all this is Holder blaming others for his own incompetence. This is the man who not only announced the trial would be held in the very city where KSM couldn't get a fair trial, but announced the verdict as well.

Well, Conan that's not true. What POWs knew was that they would be returned to the jurisdiction of their original country when hostilities were over.

True. I incorporated "returned to the jurisdiction of their original country" into "released" but your distinction is an important one - especially in this discussion.

A good question is - if you were going to release KSM, who would you hand him over to?

That's part of the open-ended incarceration problem we have with the folks at Guantanamo.

Nobody wants 'em.

"Too dangerous to have fair trials"?

Lithwick, as usual, is a complete fucking hack.

Not only are military tribunals the international standard for unlawful combatants and the like, but the US is scrupulously fair in its military courts - there's an old (but still current) saying among our servicemen that if you're not guilty you want to be in a military court.

A military tribunal is "real justice", and the kind appropriate to the circumstances. The very idea that a criminal trial was appropriate was erroneous and harmful in the first place.

The line is very clear. Citizen = entitled to civil trial. Non-citizen = not.

An Aussie gets this and the bleedin'-heart liberals of this country DON'T?? Egads. This country is going to hell in a bucket and I am decidedly NOT enjoying the ride.

The very idea that a criminal trial was appropriate was erroneous and harmful in the first place.

Yes. This, exactly. Why on earth would you give a non-citizen, a terrorist yet, the benefit of a criminal trial for a military crime?

O common sense, wherefore art thou??

An utterly partisan piece, full of implicit lies, such as the spurious distinction between real law and junk law.

Lisa,
I read the article as a (rambling) criticism of Obama for being a political and legal weeny whose actions will cause the downfall of the American legal system. Am I wrong in that? Regardless, as other posters here have mentioned, there is no legal reason to give KSM a civilian trial in the first place. Whatever Obama and the AG said before, they are doing the right thing now.

However, Amy brought up an interesting idea about the Muslim reaction. And as I am open to new strategies when dealing with Islamists, I entertained the notion of a non-tiered justice system where our civilian courts are sufficient for all, or at least for KSM. I found a tiny bit of merit to it -- not enough merit to support KSM being tried in a civilian court, but enough to see, sorta, where some could advance the issue.

Anyway, my main concern with all things Islam, is how Obama (and many others) won't say we're at war with the militants of an imperialistic, pan-Islamist, political siege. It's tricky business to be sure, but I say if you kill in the name of Allah and the Grand Jihad, then you have renounced all citizenship to your recognized nation and have taken up citizenship in Islamistland as a foreign enemy combatant. Nidal Hassan, Umar Farouk Abdumutallab, Faisal Shahzad and others should have no right to be tried by the civilian courts. Military courts are the appropriate place for them.

So, does Ms. Lithwick think the Nuremberg Trials were also "cowardly, stupid and wrong"?

(sadly, I'd forgotten about the most famous military tribunal of the previous century)

"This is such a mistake they're making in terms of Muslim opinion around the world -- they'll be able to point to this as second-class justice."

C'mon, Amy, you know better than that. They're going to say that no matter what we do -- in their minds, if it isn't sharia, it's unjust by definition. Anyway, we're the American devils, and we have no right to try KSM anyway. So the kind of trial isn't going to change their reaction one bit.

And to elaborate on what Ltw and others have said: Americans citizens not under military jurisdiction are entitled to civilian trials. No question. Non-citizens who commit crimes in the U.S. are also entitled to civilian trials, assuming that we hold them (a lot of the time, we just deport them). POWs are entitled (if that's the word) to be held until the cessation of hostilities, and cannot be subject to forced interrogation per the Geneva conventions and the long-standing rules of war.

KSM is none of the above. He fights under no sovereign nation and no uniform, so by definition he is an illegal combatant under Geneva. He is also accused of committing war crimes under the terms of Geneva, such as using civilians as human shields, and using the designations of religious and medical facilities (including the International Red Crescent symbol) as cover for armed action. We would be totally within our international rights and treaty conventions to just haul him out of his cell and shoot him tonight. However, there are precedents such as Nuremburg such that he should have some kind of hearing. It need not be a full-up American-style civilian trial with the federal court's rules of procedure or evidence. In fact, it really need not be any more than a recitation of the charges and evidence against him.

But he will get better than that, even though he neither deserves nor is entitled to it. You can bet that the people appointed by the DoD to both prosecute and defend KSM will be the sharpest pencils in the drawer, and that every argument will be as exact a science as can possibly be made. You can also be assured that the DoD will accept the verdict, whatever it turns out to be. That's not a bad deal at all. In fact, as others have said here, if I was truly not guilty, that's exactly the setup I'd want.

Oooh! Illegal combatants getting shot in their cells! I like the sound of that! And it probably has more merit than my unilaterally recognizing a sovereign nation (even though many muslims are one-nation globalists to the core.)

I wonder about Nidal Hassan, though. He clearly falls under UCMJ, and I do hope the final verdict involves a hanging or death by firing squad, but is he simply a traitor? Or was his act a renunciation of his citizenship?

This isn't a war, there was no declaration of war, there is no state against which we are at war.

This is a campaign against criminal terrorists. Cough up the evidence and prove your case in court and send them away for life or the chair or the crucifix-shaped chemical death table or whatever the hell we and the few remaining nations that inflict the death penalty use and get it over with.

Stop screwing around. They're soldiers or they're civilians. Either they get the Geneva protections and the military process or they get the criminal process.

"Stop screwing around. They're soldiers or they're civilians. Either they get the Geneva protections and the military process or they get the criminal process."

They are "soldiers" of a military organization which is not a signatory to the Geneva convention.

If they abided by it on the field of battle (uniforms and no disguising troop transports as hospital vehicles among other things and no slaughtering of non combatants) then as a courtesy we would abide by it.

Al Qaeda wants to have it both ways.

They don't follow the protocols of the Geneva convention so they get the military tribunal without the Geneva protections. Sounds fair and just to me.

What you're seeing is the rambling of people who have no idea what military service is, what battle is, or any consistent view of the term, "justice".

What they want at the moment is the only important thing. Idiots wanting a civil trial for this guy should think a minute - just any damned minute, 60 seconds, please - about where he was arrested.

He wasn't. Captured is not the same thing, even if you're trying everything you can to get American soldiers killed by people who don't buy your wacky cops & robbers ideas.

Don't call him a "detainee" - he's a prisoner.

Do you think he should NOT be?

An Aussie gets this and the bleedin'-heart liberals of this country DON'T?? Egads.

We have a similar ongoing argument here Flynne with whether illegal immigrants/boat people/asylum seekers/refugees (whatever you want to call them) should have access to the courts for assessment of their claims. The problem is that the system effectively works in a 'touch base' mode - if you get here via boat you'll spend a while in detention but ultimately you'll get permanent residency, just because, well what else do we do? Lock people up till someone else takes them? Deport people back to where they came from? Politically impossible. The previous government actually solved the problem - issue temporary protection visas that in effect said, "you can stay here, we'll get you out of detention, go get a job until things settle down where you came from, then we're sending you back". Which worked quite well for Iraqi refugees. They stopped coming. Without the carrot of permanent residency or citizenship it just wasn't worth it anymore. But that got attacked by every bleeding heart as inhuman of course, leaving people in limbo, all that stuff. Never mind that's exactly what a lot of European countries do.

The sad thing is we have a quite high per capita refugee immigration quota. The idea is that we take those from camps in Africa and Asia - genuinely displaced persons. Every one of the people who arrive by boat that we accept, most of whom had already arrived in a safe country like Indonesia, is one less place available to that program. I've met a few Iranians who spent years in Sweden or other European countries, not allowed to work or study, until they were offered a place for migration here.

It might sound silly, but it's a huge issue here. Even though we're only talking about thousands rather than the millions of illegals you have to deal with. Australia is in a fairly unique position - the only country that is also a continent - so border defense is a lot easier. I guess we're just not used to it.

Part of the issue the issue that can be considered in a Courts-martial or Military Tribunal but not typically used in a civilian trial is the effect on good order and discipline.

If I were a platoon Sergeant parked on the east ridge in a combat situation and I see the central and western platoons almost wiped out by the attacking force, but the Lt in the central force is yelling over the radio to stay in place -- if my platoon bugs out would it have helped to stay? Or I stay in place and lose half my platoon even though I knew it was a lost cause? Or I break cover and attack even though I was told to stay in place. I win the tactical battle, but now the enemy forces know there were three platoons -- when they only expected one?

Any of these can be considered in the Courts-martial. I may not be found guilty of cowardice, insubordination, or failure to follow orders (felonies), but they can still cashier me on the Article 134. General article.

The courts martial can also take into consideration information that wouldn't be admitted under the Fourth and Fifth Amendment (Article 31) -- it has a looser standard than civilian courts.

That is why a military tribunal can look at KSM and say we have enough to connect the dots and don't have to exclude things found on the internet.

That's part of the open-ended incarceration problem we have with the folks at Guantanamo.

Nobody wants 'em.

Well, we took ours back. David Hicks was quite the celebrity political prisoner with the Left over here for a while. Damaged slightly by the shot of him getting off the plane about 40 pounds heavier than when he was captured. So much for the horrific conditions at Gitmo. There was another but he's kept a lower profile so his name escapes me.

You can bet that the people appointed by the DoD to both prosecute and defend KSM will be the sharpest pencils in the drawer, and that every argument will be as exact a science as can possibly be made.

Yes. Hicks had a very good attorney who in the end got him a pretty good sweetheart deal - plead guilty to a pretty minor charge and get shipped back to serve his sentence in Australia. I think he was out within a year. He's under some sort of severe parole type thing, has to report to police regularly, etc.

Of course he was just an idiot who got caught up in the jihad fantasy (he had fought in Bosnia and Kashmir as well as attending training camps in Afghanistan) and I tend to think that 5 years locked up at Gitmo has well and truly beaten that out of him. He's not in the same class as KSM.

By the way, some of you may remember a guy who set up a cage in New York and sat in it in an orange suit as a protest - that was his father.

"They're soldiers or they're civilians. "

Under the Geneva Conventions they are neither. They are illegal combatants. They have the same status as spies and saboteurs -- basically, no status at all.

Under the Geneva Conventions they are neither.

Good point. One of the interesting things about the Geneva Conventions from a game theory standpoint is they are very much set up as a 'tit-for-tat' type deal. So churches are off limits, but if your enemy uses one as a fortress it's fair game. The whole point is "you break the rules, then I get to".

Hence the Pacific War in WWII. Japan wasn't a signatory to the Geneva Conventions and didn't in any way abide by them - so the gloves were well and truly off. Things like flamethrowers and so on were used that rarely saw action in Europe. And after the first couple of times a Marine saw someone blown up by a grenade hidden under a supposedly wounded Japanese soldier, they weren't too inclined to take prisoners.

It's true that the US has a policy of generally abiding by the Geneva Conventions, if only because it's easier to get people to surrender if you have a reputation for treating prisoners well. And that's smart. But there's no actual obligation there.

Speaking of which, was it the Golden Mosque that Moqtada al Sadr's militia took refuge in in Iraq a quite a few years back? And the US Army took quite a few casualties rooting them out without damaging it too much?

My opinion at the time was level it, immediately followed by a press conference quoting the Geneva Conventions. And explaining what they really mean.

Let's add to this that I seem to recall AG Holder saying that even if KSM was somehow found not guilty he'd still not be released. This from the idiot who now says not having civilian trials is a black eye for America?

It sounds like Obama and Holder wanted the equivalent of a Soviet show trial and were somehow blindsided when so many had fits over the idea.

"It sounds like Obama and Holder wanted the equivalent of a Soviet show trial..."

Of course it would be a show trial.

But a horribly large number of people do not give a damn about the law - they just want what they want, and today.

Name the statute that was violated.

What? You can't?

DUH. But people who don't even know what "law" is want this guy "tried" in a "court of law"!

I can count the morons who thought this was a good idea, but not easily.