The unanimous justices pointed to Article 1, Section 8, Clause 10, and noted that Congress in 1806 had passed a law that "imposed the death penalty on alien spies 'according to the law and the usage of nations, by sentence of a general court martial.'" This 1806 law, they observed, was based on a prior law enacted by the Continental Congress on Aug. 21, 1776 -- hardly a month after approval of the Declaration of Independence.
That the Constitution intended for unlawful enemy combatants to be tried by military commissions and not by civilian courts, the justices concluded, "is a construction of the Constitution which has been followed since the founding of our government."
For President Obama to take Khalid Sheik Mohammad, captured overseas and held on a military base in Cuba, and put him in a civilian court in New York City to undergo a trial using legal procedures designed for the prosecution of American civilians who have not committed war crimes, does not reinstate the traditional American understanding of justice, it radically departs from it.
Why would President Obama and his attorney general choose this course? What point are they trying to make?
In a May 21 speech at the National Archives, Obama himself said: "Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts."
Is it Obama's argument now that Khalid Sheik Mohammad did not violate the laws of war? Is it Obama's argument now that the United States does not need to protect sensitive sources and methods used in gathering intelligence on Mohammed and his al-Qaida affiliates? Is it Obama's argument now that the participants in Mohammed's trial will not need the safety and security provided by a military commission? Is it Obama's argument now that the case against Mohammed does not involve evidence gathered on battlefields that cannot be effectively presented in federal courts?
The truth is Obama has no argument at all to justify trying this unlawful enemy combatant who perpetrated war crimes against America in a civilian court designed for civilian crimes.