A post at The Volokh Conspiracy pointed me to two editorials published last week, one by John Yoo, the other by Jim Comey and Jack Goldsmith. These gentlemen know a thing or two about the legalese around the GWoT, having been principal players in the Bush DoJ.

Unsurprisingly, John Yoo thinks the KSM trial will be an unmitigated disaster:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

He discusses the Moussaui trial, and its circus-like affair, but doesn’t address the question of how the KSM case is distinguishable from the Moussaoui case.

Comey and Goldsmith take a different tack, one that speaks to the “valid arguments on both sides” points that I made last week:

Reasonable minds can disagree about Attorney General Eric Holder’s decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials.

...

Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom. Moussaoui’s trial was challenging because his request for access to terrorists held at “black” sites had to be litigated. Difficulties also arose because Moussaoui acted as his own lawyer, and the judge labored to control him. But it is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant a similar right to represent himself and speak out in court.

In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor’s justice.

Please give both editorials a read-through (Yoo discusses more of the intelligence implications; Comey & Goldsmith also discuss military commisions), and take a look at the comment trail at The Volokh Conspiracy. I still believe that tossing this off as “playing politics” is an oversimplification of a complex analysis. When I read what Comey and Goldsmith have to say, I am more secure in my ambivalence about this issue.