On Monday, April 4, Dahlia Lithwick called the Obama Administration “cowardly, stupid, and tragically wrong.”

A reference to the government’s new brief defending Obamacare in Eleventh Circuit?

Sadly, no.  Instead, Ms. Lithwick’s ire stems from a decision that the Administration got right:  putting 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) on military trial in Guantanamo Bay instead of civilian trial in New York City.

According to Ms. Lithwick, “Every argument advanced to scuttle the Manhattan trial for KSM was false or feeble: Open trials are too dangerous; major trials are too expensive; too many secrets will be spilled; public trials will radicalize the enemy; the public doesn’t want it.”

But what about the simple fact that there is a constitutional distinction between criminal acts – which merit civilian courts – and acts of war, which can be relegated to military commissions?  This distinction is widely accepted.  See this WLF Legal Backgrounder for a history of the use of military courts.

The question then becomes whether KSM is a criminal, like the Oklahoma City bomber, or an enemy combatant.  And here, the facts favor the Administration’s new position, not Ms. Lithwick.

Consider President George W. Bush’s speech on September 20, 2001:
On September the 11th, enemies of freedom committed an act of war against our country.  American have known wars – but for the past 136 years, they have been wars on foreign soil, except for one Sunday in 1941.

How will we fight and win this war?  We will direct every resource at our command – every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war

A few days later, then-Mayor Rudy Giuliani spoke in New York:

On September 11th 2001, New York City – the most diverse City in the world – was viciously attacked in an unprovoked act of war.

Osama Bin Laden saw it the same way (as reported by the 9-11 Commission):

Claiming that America had declared war against God and his messenger, they called for the murder of any American, anywhere on earth…

And as noted in the same WLF paper referenced above:

On September 14, 2001, in authorizing the President to use ‘all necessary and appropriate force’ against the countries, organizations, and people involved in the attacks, Congress expressly ratified such military operations as implementing the War Powers Act.

Sure sounds like a war.  And if it in fact was, that would make KSM an enemy combatant, which in turn would make him a candidate for a military court.
KSM isn’t a criminal; he’s an enemy on the other side of an American war.

WLF has addressed similar issues previously in: