As a conservative, I am a strong believer in following the Constitution. My political philosophy derives from following a strict interpretation of the Constitution. The rule of law is paramount.
This way of thinking should also apply to interpreting how to view the prosecution of terrorist KSM.
Since I am not an attorney — and have little knowledge of military law — I have important questions to ask related to the KSM prosecution, the answers to which will craft my opinion on his prosecution process. These are not leading questions…I really don’t know the answers. I hope my Redstate colleagues will be able to respond with facts. We cannot let patriotic emotion cloud reasoned judgment based on the applicable law.
Question: From a legal standpoint, were the attacks on 9/11 an “act of war” or a criminal action? The targets were both civilian and military, but since the perpetrators did not represent the government of another country, can such an act of terrorism legally be considered an “act of war”?
Question: Can the U.S. “declare war” on a “group” rather than a “country”?
Question: In a military action (such as in Iraq or Afghanistan) is it possible to capture and/or detain individuals who are known accused “criminals”? I suspect the answer is “yes.” Hypothetical example: if Al Capone had been captured by the U.S. military during World War II in Germany, could our forces have detained him and transported him to the U.S. for criminal prosecution?
The legal responses to these questions are paramount in determining the appropriate legal approach to KSM’s prosecution. My heart agrees with those demanding a military trial, but I’m not sure my “head” is there yet.
Depending on the legal responses to the above questions, one may be able to make a case that because KSM did not act on behalf of a government, his actions were not an “act of war.” Therefore his actions were criminal in nature. As a criminal, his capture by U.S. military forces is irrelevant to his legal status. Therefore his prosecution should be handled in the same fashion as any other non-U.S. citizen who commits crimes within the borders of the U.S. and is captured and returned to the U.S.
Have I analyzed this correctly? If not, where are the flaws in this logic?