The New York Times editorial today. I disagree.
If Khalid Shaikh Mohammed had been found in 2003 in a place where ground forces either couldn't capture him before he escaped, or where capture was not possible, the military almost certainly would have deployed aircraft to bomb his location, as it did in the 2006 killing of terrorist leader Abu Musab al-Zarqawi.
That is an option that would never be considered by domestic law enforcement, and was arguably an summary execution with no procedure, but it was not a subject of international criticism and it was considered an appropriate action against a valid military target. Our military enemies have a narrower set of rights than domestic criminal defendants. We can tap their phones, kick in their doors, search their houses, detain them without counsel and kill them in combat without judicial oversight.
The limitations on our dealings with our enemies are defined by international human rights treaties such as the Geneva Convention, which prohibit summary killing and punishment of captives and civilians, but endow no specific procedural rights for captives accused of war crimes. These enemies should not be permitted to avail themselves of the more expansive set of rights granted to criminal defendants under the U.S. Constitution.
There is no way to provide captives taken abroad by the military with the full procedural rights available to domestic criminal defendants who are pursued and captured by law enforcement agencies.
For example, if Khalid Shaikh Mohammed were prosecuted in a U.S. court, he could potentially exclude much of the evidence from the trial because of the circumstances under which it was collected. Wiretaps of foreign terrorists are conducted by military and intelligence agencies, and are not overseen by judges. The military successfully uses information gleaned from intelligence monitoring to raid and bomb terrorist hideouts, but all of this information is inadmissible in a U.S. court because the CIA and the military do not follow the constitutional rules for gathering evidence when engaging in covert monitoring of foreign communications.
Most of the physical evidence collected by the military, such as papers or computers, would be excluded either because it was collected in searches by military personnel that would be considered unconstitutional, or it may have been turned over to other agencies for examination in ways that could create challenges to its admissibility.
All statements made by the defendants would be excluded because they were not given Miranda warnings, and were detained without access to counsel. Additionally, the key tool of prosecutors in breaking up criminal conspiracies like the mafia, which are the closest analog to terrorist groups in conventional law enforcement, is the cooperating witness, a perpetrator who testifies against his compatriots in exchange for leniency. In these cases, we aren't offering deals, so we have no cooperators.
Hearsay evidence is necessary, because credible statements have been made by witnesses who are dead or who cannot be compelled to appear to testify before the tribunal. Also, it is reasonable that there would be serious public safety concerns about airing all the government's knowledge about Al Qaeda in making a case against these men.
There are compelling reasons for relaxing the standards typically maintained in criminal investigations in cases of these detainees, because the campaign against Al Qaeda has been designed around getting the information to stay a step ahead of the terror network and shutting down its ability to operate, rather than following the procedures to build a legal case against its leaders.
These United States had to take the extraordinary and unprecedented measure of going to war to bring these terrorists to justice, because they were beyond the reach of conventional law enforcement. We shouldn't let them off because the soldiers we had to send after them fight wars better than they build prosecutions.