War and Crimes

Matt Yglesias makes a smart point about Khalid Sheikh Mohamed:

Alongside the various nonsensical efforts to convince people that KSM is too scary to be put in trial, the right objects to bringing him to justice on the grounds that this represents a problematic "law enforcement" approach to terrorism. I think it's pretty clear that international terrorism has some dimensions that go well-beyond ordinary law enforcement, but if you have to put the whole thing in either the "crime" box or the "war" box, there's a pretty strong case for erring on the side of crime.

In political terms, the right likes the war idea because it involves taking terrorism more "seriously." But in doing so, you partake of way too much of the terrorists' narrative about themselves. It's their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn't a kind of war, it's an act of murder. To be sure, not an ordinary murder--a mass murder--but nonetheless murder. It's true that if al-Qaeda were something like the "blowing up train stations" arm of a major country with which we were otherwise at war, it might make the most sense to think of al-Qaeda as fitting in with spies and saboteurs; criminal adjuncts to a warrior enterprise.

In terms of the risk they pose to Americans, people like Khalid Sheikh Muhammed are closer to a drug lord than an enemy general, and treating him like a criminal rather than a terrifying military genius denies him a valuable propaganda tool.  We have tools for dealing with organized crime.  Perhaps that's a more useful model than the Nuremburg Trials.

On the other hand, it seems like there are a lot of problems the civilian model just isn't set up to handle. Was KSM Mirandized?  Did the people who captured him have a warrant for any evidence they secured at the time?  How do we subpoena witnesses from other countries?  Were any wiretaps obtained in accordance with the US rules of evidence?  Do we grant him the right to confront his accuser if doing so would compromise other US operations, or intelligence methods?  His right to a speedy trial has already been badly compromised--do we let him go?  What's the statute of limitations on being a terrorist kingpin?