What if, today, November 20, 2009, one of the guards at Gitmo walks into KSM’s cell and unloads his entire clip into KSM’s face? Would that be an illegal act? Under your theory, there is nothing in the Geneva Accords that would prohibit that. Fair enough. But is there any law at all that does? Are you saying that KSM’s cell at Gitmo is an extension of the battlefield upon which he was originally captured six and a half years ago?

Even if you answer that question “yes,” I don’t think that gets our hypothetical guard out of the legal woods. I certainly understand that on a battlefield, the finely-parsed rules lawyers talk about in peaceful, air-conditioned civilian courtrooms are not typically much of a consideration. I’ve ample comfort with the idea of relaxing legal standards based on exigent circumstances, and combat is among the most exigent circumstances imaginable. But even in a live-fire battlefield against an “irregular opponent” as opposed to an enemy soldier as defined by the Geneva Accords, one of our soldiers is still not entirely free from legal restrictions on what he can do. He may not, for instance, kill a fellow American soldier with impunity. (I’m thinking of a murder rather than “friendly fire”.) If one of our soldiers were to do such a thing, there would be a legal consequence; he would be court-martialled for murder and maybe even treason.

So I can’t wrap my head around the idea there is simply no law of any kind binding our conduct in this situation, that the only rule that applies at all is what Breaker Morant called “Rule 303.” With the same intensity that you all won’t concede the point that the Constitution does not afford KSM any rights, I cannot concede the idea that our government lacks some kind of legal restraint on the arbitrary exercise of raw, violent power. If that restraint is not found in or derived from the Constitution, I’d be interested in your opinion on where else I should search for it.

That’s why, during The Bulge, our men were catching German troops in U.S. uniforms and, rather than taking them prisoner, would shoot them as spies. And those Germans did NOT target non-combatants.

KSM and his ilk are unlawful combatants, which means that, under the Accords, they can be shot without trial, they can be tortured for information (I’m not talking waterboarding, but REAL torture here), whatever. They no more fall under its jurisdiction than you do if you get a parking ticket.

Please note – I am NOT saying torture is fine, or that we should engage in it. I’m just saying that they receive no POW protections from it.

KSM should have been shot as soon as we had all the actionable information we were gonna get from him. Keeping him alive has only proven to be a disaster. He probably never should have made it to Gitmo – and I’ve heard firsthand from some folks in the know that our boys are gonna be much more likely to not take prisoners already, much less if the NYC trial becomes the circus we’re afraid of.

Now he’s got all the facts, including sensitive, classified material (that some suspect he wants our declared enemy to have), yet he wants to parade the poor pig’s butt down Manhatten to a clown’s circus so the world will see how “just” we are?

What’s wrong with this picture? Kinda sounds like Tehran or Beijing to me.

CB, very insightful, and probably spot on.

And TWoPolitics, the world saw that trial and knew immediately that our system of “fair and just” justice has nothing to do with justice. If it did, approximately 1/3 – 1/2 of the rapes wouldn’t happen due to repeat offenders and/or people out on bail waiting for trial on a similar charge.

Here, I agreed from the very start of our discussion yesterday that using KSM’s trial to put the Bush Administration on trial (whether directly or through the proxies of defense attorneys) would be an inappropriate use of the criminal justice system. I advocated, and never objected to, the use of a closed-door military tribunal for the guy. Where we disagreed was whether the Constitution requires due process all or whether we were granting it just to be nice.

And if the KSM trial were going to be a meaningful, genuine judicial procedure, then I’d stand by my arguments from yesterday. What I wrote then, I wrote before I knew that the government intended to simply ignore a verdict that it didn’t like. So until and unless there is either a retraction from Holder or an override from Obama, this whole KSM thing is a plain farce — it’s better to have no trial at all than a show trial.

Now, could I talk any of you into signing on to the idea of calling the guy a POW?

If you’ve been paying attention, you already know all about AG Eric Holder’s and his DOJ staff’s national security conflict of interest as senior partner with Covington & Burling- the prestigious Washington, D.C. law firm, which represents 17 Yeminis currently held at Gitmo.

…

In fact, Holder and Covington & Burling have a lucrative niche in terrorist representation.

I say we should have given into KSM’s request to martyr him. Let him be heralded as a martyr, and let us be done with this over the top expensive show trial. Just how much money is this going to cost the Chinese again?? – Lorica

TL: I really admire that are you are able to see the truth of it notwithstanding your political leanings. That takes a lot more openmindedness and integrity than one normally encounters on a political blog.

I’m afraid Holder’s decision is motivated not just by a desire to demonstrate to the world America’s decency and sense of fair play, but as a way for Obama to put Bush-Cheney on trial without having to do it himself. IOW, KSM’s legal team will serve as the de facto prosecutors in a fake war crimes trial against the Bush Admin. Plenty of red meat there for the left and no need for Obama to get his hands dirty.

They are ignoring “our” laws with a wink and a nod, just to bring these terrorists here to put the previous administration on trial.It’s blatant and unforgivable,I truly hope these buzzards get whats coming to them for their absolute lack of concern for their fellow citizens.