Attorney General Holder’s announcement today that the government will, after several starts, fits, and stops, try KSM in a military commission at the Gitmo facility was welcome news to many. It gave me a feeling of déjà vu: Gitmo was the place where, over two years ago, military-commission proceedings were initiated against KSM and four other HVD’s who conspired to commit the wartime atrocities of 9/11.
Now, the families of the victims will finally get a chance to have some closure to their grieving. They have waited long enough, and now must be quite pleased to see that proceedings will begin shortly against the war criminals who planned and executed their mission against innocent civilians. It is time to ensure justice is done, for all.
Also, the decision to have the case tried in a military commission reminds the citizens of the United States — and the world, for that matter — that this is an armed conflict we are engaged in against al-Qaeda. Certainly, this conflict is not a traditional one, but it is one nonetheless. Perhaps it is the way many will be fought in the 21st century. Using civilian courts would have only made the legal landscape more ambiguous — is it a law-enforcement action or a war we are engaged in?
Civilian courts were not the right venue to try KSM et al. Using civilian courts presented all sorts of evidentiary issues, Fourth and Fifth Amendment issues. The open federal courts would have doubtlessly been used to make the trials a propaganda circus for al-Qaeda. Security would have proven ridiculously expensive and would have impacted local businesses and much of the local economy in lower Manhattan. Policymakers in NYC and elsewhere made clear that they did not want these men tried in civilian courts.
The decision to try these men in a military commission was the right one for numerous reasons. Although I would have preferred the creation of a national-security court for such hybrid warriors’ trials, there is little question that the military commission is by far the better alternative to trying these international pariahs in a federal district court.
— Glenn Sulmasy is the author of The National Security Court System: A Natural Evolution of Justice in an Age of Terror. The views expressed here are his own.