to know KSM's trial is a sham no matter how it proceeds.

A lot has been said on both sides of the aisle since Attorney General Holder's decision to give KSM a trial in the Southern District of New York, and most of it has been white noise.  As for the propriety of Holder's decision, I think the most salient article I've read about it was written by George Friedman (and it's so coherent I doubt he's related to Tom).  Friedman succinctly states, "A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work."  Instead of taking sides to task, George Friedman simply points out that the tenets of international law that international law enthusiasts rely on were simply never crafted with 21st century substate terrorist groups in mind.  No surprise there.  Friedman believes that in a perfect world, the wisest thing to do would be to revisit international norms to come up with a new method for dealing with the type of scenario we find ourselves in.  But let's face it, when it comes to the international community, we're far from dealing with a perfect world.

Regardless, Holder has made his decision to pigeonhole Khalid Sheikh Mohammed's case into the framework of a federal trial.  One of the themes I've seen repeated by liberals is that trying KSM in federal court instead of a military commission is "following the rule of law" or "demonstrat[ing] our moral legitimacy."  That would be news to the father of our country, who conducted military commissions during the Revolution and ordered the summary hanging of Benedict Arnold if he was caught.  And that involved state actors in a declared war no less!  But the real irony in Blickstein's insistence that a federal trial is "following the rule of law" is that the United States or the presiding federal judge is going to have to not follow the rule of law to convict KSM.

Perhaps the greatest irony of the decision is the proponents' suggestion that detainees will get a fairer trial in federal court.  That surely would be true except for the minor inconvenience that the facts of the case and the detention of individuals like KSM make a fair trial impossible, and not even the most liberal member of Code Pink would advocate letting KSM walk.

To start, a first year law student acting as KSM's defense lawyer would immediately know to argue for a change of venue.  It's hard to think of a more prejudicial district for venue than a court sitting in Manhattan near Ground Zero.  And a judge acting impartially would probably grant it, since it would be possible (if not practical) to move the trial to any federal district that has a certain connection with the case.  And let's not even get into a fair jury panel, which is supposed to be a panel of one's peers.  Good luck finding someone who's unfamiliar with 9/11, and unless KSM has name recognition on par with Joe Biden, the jury will be prejudiced against him.

Once those hurdles were cleared, the prosecutors will then have to produce the evidence, and the defendant will have a right to see that evidence and ask for exculpatory evidence in the prosecution's possession.  This has conservatives howling about the possibility of national security related intelligence getting into KSM's hands and then possibly into the public domain or Al Qaeda's hands.  Andy McCarty explains some of the concerns regarding classified information and counter-terrorism intelligence (as well as distinguishing them from each other), and conservatives point out that highly sensitive intelligence from the Ramzi Yousef and Blind Sheik trials made its way to Al Qaeda in the 90s.

In this instance, I'd like to give the Administration the benefit of the doubt, trusting that it will A) not try to use tainted evidence based on coercion or waterboarding, and B) that it will not try to use evidence that is highly sensitive from an intelligence standpoint.  My concerns and beliefs are echoed by David Laufman, who notes, "If the government's going to prosecute Mohammed for 9/11, it will have diligently and thoroughly scrubbed the evidence to obtain certainty" that it can get a conviction.  Any evidence gained by interrogators since KSM's capture must be precluded under the basis of his detention, waterboarding, or possibly even a lack of reading him Miranda.  Others have mentioned a lack of chain of command regarding holding physical evidence as well.

This post is merely glossing over some of the procedural aspects of any potential trial, but what's made clear is that our government is going to have to engage in what is essentially an unfair trial to convict KSM, and the sole motivation for doing so is supposedly to show the world that we're going to follow the rule of law and hold ourselves to a high standard.  Even while we're undermining it.