What Do You Do With A Problem Like KSM?

Khalid Sheikh Mohammed, and company, are going into the trial phase as of yesterday. In case you didn't know, he's the mastermind behind 9/11. KSM was waterboarded something like 183 times. Now, on trial, the defendants are acting up. They are:

1. Refusing to wear translation head-sets ... because it reminds them of being tortured (said using the actual word)
2. Their lawyers are requesting that all females wear headscarves so the defendants don't accidentally sin by looking on an un-scarffed woman.
3. One guy was tied to a chair (he was later untied--but when asked if he behaved, he said nothing)
4. They haven't entered pleas. The process took like 13 hours and resolved little.
5. They have mouthed off about torture, causing the observers to hear static since their observation outpost is on a 40-second delay and so it was 'buzzed out' (white noise).
6. Their lawyers have repeatedly questioned the judge's competency in trying the case.
7. They have interrupted the procedures to pray.

Some Background

The Obama administration wanted the guys moved to the mainland and tried in civilian court. Congress said "nuh-unh." What they're getting isn't exactly a military tribunal either. It's a hybrid. Here is PowerLine's assessment:

Traditionally, military tribunals have had the virtues of speed and efficiency. In an effort to impress observers around the world, however, the Obama administration has devised new rules for this proceeding. Based on what we have seen so far, this forum represents little or no improvement over a civilian trial. And the idea that anyone will be impressed by the elaborate “due process” that we accord to terrorists, along with countless opportunities to insult us and their victims and to preach their jihadist ideology, is fanciful. What most international observers will conclude, is that we are crazy.

I don't think this is far off the mark.

What's The Problem?
The problem is three fold:

1. The defendants fall outside traditional jurisprudence. They are not uniformed combatants. They are not members of a foreign, hostile governmental force. They are aggressors against the US on foreign soil. There are no/few standards for rules of evidence against them and very few records in any event (unlike, for example, Nuremberg where there were records, witnesses, etc.).
2. They have been held for years and tortured (waterboarding is torture--and was treated as a war crime in the past when it was done to our guys). This wrecks evidence taken "under torture" which is to say: the confession. It calls into question evidence taken "after torture" or even "before torture" since they were held by an agency (us) who tortured them. Who knows what evidence is untainted?
3. The idea of setting them free is repellent to most Americans. While the untainted evidence may be slim, there is little doubt of their guilt (for most observers, anyway--and their rhetoric doesn't really deny it either). If one of those guys goes free, there goes Obama's next election. As such, not only is the court rigged--but the defendants have little reason to cooperate.

What Should We Have Done?

This is a very different question from "What do we do now?" I think the answer is as follows:

1. Don't waterboard. Forget about moral or ethical objections to this--the problem with waterboarding is that if you waterboarded me I'd confess to having masterminded 9/11. I didn't do it--but drown me enough and I'd confess. This taints things badly.
2. Establish standards for guilt vs. terrorist combatants. These will necessarily be harsh as terrorists don't wear uniforms or have conventional structures. As such, it is possible that someone will be deemed a terrorist when they are not. However: just by publishing something and sticking to it, it makes the court "not a kangaroo court" (or, at least, hopefully less of one). Have someone responsible for "chain of evidence" when these guys are scooped up on the battlefield. Use cameras with cryptographic signatures for evidence of their state of capture. If you do this then a court can "establish guilt" by those guidelines.
3. Use a closed military tribunal, ideally on American soil. It can be brutal--but so long as it uses established rules of evidence and doesn't create a circus it'll get the job done.

What Do We Do Now?

It seems we have to do the following:

1. Use non-confession rules of evidence. They think they can use a "vein on the image's arm" to show KSM beheaded Daniel Pearl. If that's convincing? Good. If not? That sucks. But don't use his confession: it's tainted.
2. Put up with the circus: we bought it and paid for it. We have to fix it next time--but for now? Don't change the rules because the guys are gaming them.
3. Close Gitmo. It's a symbol and it isn't a good one. Congress should allow those guys on American soil (Supermax should work).

What Do I Think?

I remember reading someone saying "I didn't have a picture of Captain America on my wall because he was slightly less evil than The Red Skull." That's where I stand: we don't torture. My reading suggests waterboarding is torture--that taints everything that touches it. If we lose that, we lose something essential to the American character. The American dream doesn't give up just because it's not convenient and neither should we.

Do I think we should try the people who did the torture for war-crimes? I've thought a lot about this.

The answer is: yes.

Why? I wouldn't want to see this done. It would be messy. It would be divisive. It would look like vindictiveness on the part of the Obama administration--so I'd actually want a Republican administration to do it (Would they? Today? No. That's one of my problems with the Republicans). However: there are two approaches to ethically dealing with torture. These are:

The Ticking Time Bomb

The TTB scenario suggests: you have the terrorist (or criminal) who says there is a bomb on a school bus full of kids that will explode in 10 minutes. If you don't get him to tell you which one, a bunch of innocent kids will die. What do you do, tough guy?

The answer: IN THIS ONE CASE IT IS ACCEPTABLE TO TORTURE. You go to town and make him tell you. Right? The good of the many outweighs the good of the few? The moral evil of torture is less than the moral evil of a bunch of dead kids--and, most importantly, the time is too short for conventional detective work.

This is the first, and most commonly used "situation where it is okay to torture."

Beg Forgiveness

The second approach is this: It is NEVER okay to torture. Those kids, that bomb? Hey--so what? You still can't hook his balls up to the generator. But, of course, you do. Then you go to trial. If a jury, after the fact, decides to let you go? Fine. If not? Sucks to be you. You do it anyway but you know you will be tried. You know if things go wrong you will be screwed.

This approach is better. Why? Because torture is an enabler and a gateway for bad behavior. Once you start torturing you do other things--bad things. Things I do not want done in America's name. As such, while I think in the literal case of the kids and the bomb ... a jury would acquit ... it is notable that there has never ever been a situation like that.

The threat has never been that immediate. The victims? Never that innocent. Yes: we might've gotten Bin Laden's location through torture (that's contested) but regardless--that is not the same as having 10 minutes to save a bunch of school children. I think we would have to risk a trial.

I think a Republican administration would have to do it (Nixon. China.). 

I'm sure that'll never happen.