There’s nothing left to say but that we’ll see how it turns out. I hope they’re right… but I suspect that certain folks will be working hard to make sure that this resembles O.J. more than McVeigh.

SG: I absolutely agree with your last sentence. I don’t think that the Obama administration is required to use military commissions — not to make nice to Bush or for any other reason. But neither should military commissions be rejected just for the cases that maximize the potential to be nasty to Bush.

You’ve never presented any evidence that that is the case. If DOJ is convinced they can get a conviction in civilian court without compromising classified information, there is no reason why they should not do so. If they are less confident — either because some of their evidence is inadmissible or classified — then military commissions may make more sense. There is nothing hypocritical about wanting to keep the number of cases before military commission to a minimum as that means less of a risk coming from appeals. Last time I checked, DOJ has over a 90% conviction rate while the military commissions are still largely untested.

(1) They underestimate the dangers that sensitive information helpful to Al Qaeda may be inadvertently released; they just dismiss it by saying that courts have gained “experience” in prosecuting cases over the past 15 years. But the 1990′s SDNY prosecution of the 1993 WTC bombing and embassy bombings showed that even non-top secret information (e.g., list of unindicted conspirators) tipped off Bin Laden. Perhaps Comey and Goldsmith, in the end, are right, but their analysis is so glib and cursory, especially for someone of their vintage.

(2) They also try to downplay the difficulties of the Moussaoui trial (e.g., the possible dismissal of the indictment). They somehow fail to mention that we were spared a potential fiasco in large part because he surprisingly plead guilty, and not because the civilian courts were suited to try someone like him.

(3) They claim that a civilian trial is beneficial because KSM won’t be able to complain about a “kangaroo court.” Really? And the President of the United States and the Attorney General publicly declaring that he will be found guilty and executed (“failure is not an option”), and stating that he won’t be released in the U.S. if acquitted doesn’t seem like “victor’s justice”? (And if military commissions are likely to be deemed a “kangaroo court,” why are they being used against other AQ operatives?).

(4) They claim that trying KSM in NYC won’t make the city a bigger target than before. To quote the 9/11 Commission Report, they lack the proper “imagination.” Al Qaeda surely has been plotting another attack on U.S. soil, but they don’t have the resources to pull of a large-scale terrorist attack (thanks to counter-terrorism efforts and killing of top AQ operatives). Some reports have suggested that AQ can commit smaller terrorist acts, but wants to engineer another fantastic attack; it would be a sign of weakness to blow up a few stores in Manhattan Mall on a random day after they succeeded in destroying the WTC towers. But detonating bombs on a NYC subway the day that the trial of KSM begins would be a huge PR and symbolic coup for Al Qaeda. So I think there is some increase in risk for NYC.

If the overriding concern is the perceived legitimacy of the outcome, then there would seem to be no reason for using military commissions. But since we’re going to use military commissions for some, we have to believe that military commissions are good enough. So if they are good enough, why would you want to bring the “worst of the worst” (to borrow a phrase) before the court that’s got a higher likelihood of false negatives?

I absolutely agree with your last sentence. I don’t think that the Obama administration is required to use military commissions – not to make nice to Bush or for any other reason. But neither should military commissions be rejected just for the cases that maximize the potential to be nasty to Bush.

We are so enlightened now that you get extra rights if you kill civilians. Quite an advance, eh?

As I understand it, a soldier that kills other soldiers has the right to be let free when the war ends, so I think that hanging KSM is hardly “extra”.

If we abandon our Principles, then the enemy wins, whomever they may be.

I’m ashamed to admit that my heart stubbornly declines to bleed for them.

Having sympathy for, and giving due process to, a defendant are entirely distinct. I have no love for Adolf Eichmann, but I’m glad he was tried before he was hung.

Which arguments did they lose? Comey got the eavesdropping reconsidered; Goldsmith got Yoo’s memos withdrawn.

More important, sending the 9/11 plotters to federal court makes sense for another reason. The Commissions have never operated under their new rules, and barely operated under their old rules. There are a large number of legal issues that have never been faced in the commission context, or only in the first instance. Commission judges — operating under the older rules — were less favorable to the government than many had expected. I suppose they would rather be Spencer Tracey than Burt Lancaster. In any event, the S.D.N.Y. doesn’t have to reinvent the rules of evidence, of access, of confrontation and all the rest.

What does that “determination” (by “U.S. forces,” = “Cheney”?) have to do with where and how KSM is tried for his crimes?

Also, consider this: Lindh, Reid, KSM – which one of these is not like the other? Which one of these doesn’t belong? If you cannot decide ask, which one of these has been waterboarded? US forces have already made the determination that KSM is a different kind of terrorist, why are Obama and Holder second guessing?

Leaving aside that Pakistan, unlike northern France, was not occupied by an enemy army.

Because “Al-Qaeda” was assumed to be behind the attacks (Evidence linking Bin Laden does not exist according to FBI) and because we couldn’t produce evidence to provide the Taliban so they could be sure he was responsible… The first act of war was not 9/11, but U.S. Attack and invasion.
Without a declaration of war, seems as if a court would need to issue a warrant, no?

What would happen if a warrant wasn’t issued, and upon search and seizure operation, people fire at an agent… They weren’t guilty of anything except shooting the agent who broke into their homes. If the courts weren’t established when the crime occurred, then it’s ex post facto, no?

Without a trial, we don’t know the detainees guilt or innocence. If we’re supposedly at war to protect our ways of life, shouldn’t we be the example we wish to see in others?

IMO, these people followed our lead… As far as many of the civilians and victims go, we struck first.

If we can only obtain Justice by committing Injustices, then we should rethink about what exactly we’re fighting for.

All accused persons have a right to a fair Trial, else the Government is tyranical/oligarchial.

If Bush II goes to trial, it shouldn’t be a problem, so long as he didn’t violate the laws.

Personally, I hope they do, and the same is true for all presidents or otherwise that act above the rule of law.

Germans were more likely to surrender to Brits or Americans than to Russians — the reasons ought to be obvious. Even then, because of well-publicized incidents when Brits and Americans did actually kill prisoners, both countries had to spend a lot of effort on propaganda to convince the enemy that these were aberrations and that they would be treated well if they laid down their weapons. It seems likely that war crimes committed by the Allies cost the lives of their own soldiers in the end as it may have caused the Axis soldiers to fight that much harder to avoid being captured.

Anderson: Werwolfs were given a summary hearing in front of a commissioned officer and then shot … Also, the Wiki article on Werwolf is interesting for two points:(1) The summary executions were indeed illegal; and
(2) The would-be Werwolves were actually pitifully ineffective but “its value as propaganda far outweighed its actual achievements.”Sorta like al-Qaeda.

Aw, shucks. Hanging Nazi partisans was against the law? I’m ashamed to admit that my heart stubbornly declines to bleed for them.

SG: that the decision making process is functionally equivalent to Bush’s ad hoc process.

Functionally equivalent to Bush’s ad hoc process in the aftermath of the Military Commissions Act of 2006 and the series of Supreme Court decisions that put many legal checks on the President’s ability to detain and punish those designated as enemy combatants. These were mostly measures and safeguards that Yoo, Cheney, Addington and other Administration officials fought very hard against while they were being proposed and debated.

I’m not a Cheney-ite (whatever that is), but my concern is that the KSM trial is being used as cover to put the Bush admin on trial – either (or both) as an expression of legitimate outrage over what was done or as a way to keep the base fired up over Bush. I’m sure Dems would prefer to run against Bush in 2010/2012 then run with their actual record of governance. What’s the unemployment rate and current federal deficit at now anyways?

Which is not to say that the Bush administration shouldn’t be put on trial for what they did (that’s a separate discussion), but if that’s what the Obama administration feels needs to be done then they should do it directly. I think using the person who planned the murder of 3,000 of my fellow citizens as a pawn to attack political enemies is repulsive.

a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor’s justice.

and

It is more likely that Holder decided to use a commission system still learning to walk because the Cole case is relatively weak and will benefit from the marginal advantages the commission system offers the government.</em

Well, which is it? Are commissions problematic because they enable complaints of kangaroos courts and victor’s justice or are they a good choice because the offer marginal advantages to the government? It would seem that if they are illegitimate (or broadly perceived as such), it shouldn’t matter what advantages they offer. Conversely, if military commissions are sufficiently legitimate to be usable and they offer even marginal advantages to the government, then why would the government choose not to take advantage of them for the “trial of the century”? And where is the legitimacy in a process that only gives trials to those who are “obviously guilty”, while shunting off those who are presumably not obviously guilty to a process of uncertain legitimacy? Since when did “damned if you do and damned if you don’t” become a synonym for legitimacy?

And even they acknowledge, in defense of Obama’s decision, that the decision making process is functionally equivalent to Bush’s ad hoc process. The Obama administration is picking and choosing venues based on which they feel gives them the greatest advantage (An aside: do all those pointing to this op-ed as a defense of Obama now defend the Bush administration for when they did this? If not, why not?). The question as to what advantages Obama sees in bringing KSM before an Article III court in NYC remains open.

And while Comey and Goldsmith did allude to an advantage to criminal trials (a military commission previously gave a lesser sentence than a criminal court might have), I don’t recall Holder ever making this argument in his Congressional testimony. Did I miss it or did this “advantage” just slip Holder’s mind?

matt c: none of those people were caught on foreign battlefield, but john walker lindh, who also happened to be a us citizen.

Nor, for that matter, was KSM. The details are hazy but he was apparently apprehended by the Pakistani ISI either in Karachi or Rawalpindi. Unless you stretch the definition of battlefield to include the entire nation of Pakistan, he is not a battlefield detainee.

Anderson says:
I don’t understand how the Andrew McCarthys will argue in good faith against the team of Comey and Goldsmith, but I have little doubt they will argue in some faith or other.

Channeling SirCastro, but without his ever-present view from the left:

It’s so totally obvious to any thinking human being that anyone who disagrees with me cannot possibly even have a pretense of arguing in good faith, since anyone who agrees with me cannot possibly ever be wrong.

It is in effect a declaration that this nation is no longer at war.

Well, to be fair, the nation never has been at war. The executive branch has been – when it suited its purposes to be; the Congress when there was face time in it; and the Court when it couldn’t duck the issue: but, basically, no. It’s fascinating how profoundly unserious American government has become.