Whether or not a court is just is a philosophical issue, not a legal one, and these philosophical debates are the very type we expect our representatives in Congress to cope with. If you think the MCA is unjust, that is a matter to take up with Congress. Perhaps it is unjust (I do not think it is neccessarily) but that debate has happened and a conclusion drawn. There is no reason for the state to not take advantage of it, at least not in this case.

Further, the Commander in Chief, along with his Attorney General have guaranteed that these defendants will be found guilty, an amazing – and disgusting – assertion from lifelong civil libertarians. If the state has purposed to never let the defendants go free no matter the outcome of the court’s decision, how can this be anything but a show trial?

I’m not fooled by this, and I think on reflection few will be, certainly not our enemies. The only clear purpose of this trial is to put George W. Bush on trial. The Supreme court has made it clear that civilian defendants have an absolute right to see all evidence that will be used against them without regard to any claims by the government that revelations might imperil state secrets, such as sources and methods. Evidence will either be suppressed to protect our national security, or things will be revealed that will be an intelligence boon to our enemies.

On a side note, I recall dimly from a relative that a uniformed serviceman had the option of requesting a civilian trial when accused of a crime. I know that they can request civilian counsel, though not necessarily at the government’s expense.

“Every bad precedent originated as a justifiable measure.” Sallust

Today Law enforcement agencies are starting to use anti-terrorism laws to profile US citizens right here in Missouri. (http://www.scribd.com/doc/13290698/The-Modern-Militia-MovementMissouri-MIAC-Strategic-Report-20Feb09-) The Department of Homeland Security has done the same thing on a national level. (http://www.gordonunleashed.com/HSA%20-%20Rightwing%20Extremism%20-%2009%2004%2007.pdf) If a few terrorist can get us to violate our own Laws, can we still claim to be a nation governend by Laws? The State of NY does have the authority to try KSM for the crimes he commited in the State of NY. Also I’m not a fan of the military judicial system. During my time in the Marines, I saw several marines get charged with crimes just because the commander didn’t like them. Our service men and women deserve better that our military’s system of “justice.”

The fact that there has not been a series of formal declarations by Congress is not a result of any oversight by Congress, but due to the relative novelty of these offenses. Terrorist organizations may be non-state actors against whom letters cannot be served but they carry out the sort of crimes that were only possible by states in the not too distant past. This fact ought not be used to afford them MORE rights than war criminals. Just the opposite. By being barbaric, they deserve little more than to be squeezed dry of information, given five minutes to make their peace with whom they will soon meet, and be hung from a yardarm.

Today, there is no advantage to obeying the laws and traditions of land warfare as there was when the Geneva protocols were accepted. Today, engaging in terrorist actions with the specific intent in inflicting civilian casualties will not net you a cursory but fair review. Not at all, murdering civilians while complaining bitterly about America will get you get a full-blown circus trial complete with highly-educated lawyers stuffed full of self-righteousness who are bound by code to do ANYTHING to secure acquittal.

If then there is no advantage to confining your warfare to those customs intended to protect civilians, we can expect more of the same.

I would not deny an incapacitated combatant accused of a war crime due process, but a military tribunal system was in fact authorized by Congress. These particular killers had already agreed to plead guilty under that system. KSM and his fellow war criminals would already have had their day in court, and we would have ended their days by the numbers were it not for this administration’s desire to turn this into a show trial.

Our Constitution allows Congress under Article I sec 8 to “…define and punish Offences against the Law of Nations…” within the confines of the Due Process and Equal Protection required for all PERSONS, not only citizens, under our jurisdiction. Using the Necessary and Proper clause, we have codified the Due Process and Equal Protection required for prisoners of war through the Uniform Code of Military Justice. At a minimum enemy combatants must be afforded notice and an opportunity to be heard. However, since there has been no declaration of war against any foreign sovereigns, nor Letters of Reprisal issued against persons or activities, then the prisoners we are currently holding have been denied notice of their legal jeopardy as potential prisoners of war rather than as civilian criminals. The other critical element of Due Process is an opportunity to be heard. Yet to date barely a handful of the Gitmo detainees have received a trial. Due Process is always able to be provided so long as the law which underpins it has not itself been broken. We must then be very careful when weighing the arguments of those responsible for the breakdown in the enforcement of our law for to concede that we are not capable of providing Due Process is to admit that we have broken our own law. Providing these things, to the worst of humanity, is what separates the law abiding from the pirate and the terrorist.

Guantanamo Bay is a stain upon our National Honor. Within its walls we denied other human beings the same Due Process we gave to Nazi’s guilty of genocide. Within it’s walls we committed torture in the name of convenience. Within it’s walls our government abandoned the Ethics of Liberty for the cheap bauble of expediency. It must be closed and what went on there must never be repeated.

“it is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.” Justice Felix Frankfurter