KSM and the media storyline

David Rivkin and Rich Lowry:

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UNDOUBTEDLY, the media's ideol ogical bias prompts it to be dubious about KSM's confession - for his statements powerfully rebut a favored media narrative, the notion that the Guantanamo-based detainee population is mostly comprised of "innocent shepards" wrongly swept up by the United States and its allies.

This notion is pivotal to the critics' efforts to delegitimize the military-justice system that features CSRTs, military commissions and the detention in Guantanamo of captured enemy fighters for the duration of this war and their interrogation - all of which have been in play in the case of Sheik Mohammed.

The news of the confession, perversely, has even become an opportunity to renew calls for the closing of Guantanamo and the use of the criminal-justice system as the exclusive venue for dealing with KSM and his al Qaeda colleagues. This is foolishness.

Take the argument that, even if Sheik Mohammed is telling the truth, he is nothing more than an ordinary criminal and should be treated as such. This ignores the revolution over the last several decades in the rights of criminal defendants, resulting in a great emphasis on a variety of technical evidentiary and other rules. Given this emphasis, convicting individuals captured overseas, when all of the physical evidence also is derived abroad, is exceedingly difficult. Thus, trying al Qaeda personnel through the U.S. criminal-justice system would likely result in most of them going free.

THAT practical problem aside, there is another compelling reason to con tinue to use the military-justice system to deal with people like Khalid Sheik Mohammed. A society's choice of a particular legal paradigm to deal with a certain type of transgression reflects powerful symbolic considerations.

The critics understand this in their own way. In the case of KSM, they claim that calling him a combatant accords him undeserved dignity. Yet this argument would only hold if he was being designated a lawful combatant, captured in battle, who may be guilty of some individual war crimes. In fact, Sheik Mohammed is an unlawful enemy combatant - an individual utterly without honor, whose entire modus operandi is in violation of the traditional laws of war. He is an enemy of humanity.

IN other circumstances, humanitarian groups and international-law mavens understand perfectly well the symbolic importance of charging individuals with grave violations of international law and laws of war. Indeed, they have insisted that individuals ranging from Serbian President Slobodan Milosevic to senior leaders in Rwanda or Darfur be charged with genocide, ethnic cleansing and war crimes, rather than being slapped with national-law violations, such as murder, assault or robbery. The same logic should, of course, apply to Khalid Sheik Mohammed and his al Qaeda cohorts.

Yet the critics are so intent on undermining the United States' ability to deal with the Islamist threat as a real war, to be prosecuted using the traditional law-of-war paradigm, that they insist on the criminal-justice system as the exclusive legal tool in it, and minimize inconvenient facts about Khalid Sheik Mohammed's war crimes.

They should wake up. It is not just the Bush administration that says our fight with al Qaeda and other jihadis is a real war: Our enemies say the same thing. Look no further than Khalid Sheik Mohammed's confession.

I don't believe KSM deserves a trial of any sort at this point and he will never deserve a regular criminal trial. That would validate the flawed lawfare model that was used prior to 9-11 which made the job of our enemies much easier by revealing our sources and methods of gathering evidence against them. It would also inhibit our ability to stop planned terrorist attacks because giving them lawyers and fifth amendment rights would stop the interrogation process which would inevitably lead to more Americans being killed by the enemy. It also bastardizes the handling of enemy detainees during a time of war.

Detainees who follow the rules of war should receive POW treatment. Those who do not, who are unlawful combatants should be treated differently. They have no right to remain silent. They like a POW should be held for the duration of the conflict. That they have taken a course that will lead to a long war and thus an indeterminate sentence should not b e considered our problem but theirs. Those who wish to confer constitutional rights on the enemy dangerously misguided and would undermine the war effort and make it easier for an evil enemy to kill innocent Americans.