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The original decision to house terror suspects at Guantanamo Bay was something of a default selection. These people were captured during a campaign against terrorism, and the United States was loath to agree tacitly that these were prisoners of war and thus entitled to any rights afforded conventional warriors. The suspects were seized on foreign soil, and we did not want to relinquish control of these people to governments that had prisons with inadequate security. Furthermore, it was feared that some governments would have summarily released the terror suspects, enabling them to kill more Americans. And Guantanamo is not in the United States and thus not subject to US law, permitting the Bush administration to study at relative leisure the dilemma of what jurisprudence, if any, applied to these people.
Nearly a decade later: a new president, a new attorney general and a different decision on the same problem. For a number of reasons---some excellent and some nauseatingly self-serving---Obama decided to close Gitmo, although the Congress, in a lopsided vote, refused to fund the closure.
Now, the administration has decided on a tactic that it hopes will achieve its objective of getting Guantanamo off its To-Do List: try the terrorists in federal court on American soil, and to that end, Khalid Shaikh Mohammed, the man who says he planned the 9/11 attacks, is being brought to New York to stand trial.
For starters, KSM's defense team will contest the composition of the grand jury and its indictment, and it will not agree to a trial without a petit jury, since conviction requires the prosecution to convince every single person on an untutored panel, all of whom have so much time on their hands that they can sit for months---or even years. Juries are notoriously quixotic, too, easily impressed by theatrics and occasionally convicting the innocent but also freeing the guilty. And in any case, selecting a diverse jury will take nearly forever, as there will be endless argument about the possible bias of potential Muslim members---and of Christians, Jews, multitheists, anamists, Buddhists, agnostics and atheists as well.
KSM will also argue for summary dismissal or that no evidence should be admissible, since he was arrested illegally; is not subject to the jurisdiction of the court; was coerced; was tortured; was denied counsel; was denied a speedy trial; had a rotten childhood.
The terrorists have been trouble both on and off the battlefield, but the problem of deciding what is to be done to them by a nation founded on the rule of law will haunt us for a long time. Mayor Bloomberg of New York City agrees with the decision to try KSM here, although he may not have considered that the court will be unable to find a single unbiased juror in a city that suffered more killed by enemy action---almost all of them innocent civilians, by the way---than were killed at Pearl Harbor.
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We have travel treaties with nearly every country in the world, and if we ask that specific people not be boarded on US-bound vessels of any kind, these people will be denied at the port of embarkation.
