'He also highlighted that the administration's approach to anti-terror legalities is riddled with absurd inconsistencies.
On the one hand, Judge Lewis Kaplan, who presided at Ghailani's trial, barred prosecutors from presenting a key witness - the man who sold Ghailani explosives - on the ground that the government discovered who the witness was when the CIA subjected Ghailani to rough questioning.
On the other hand, Kaplan expressed the view that the U.S. could legally hold Ghailani without a criminal conviction as an enemy combatant.
Even more schizoid, President Obama has properly marked for death radical Islamist preacher Anwar al-Awlaki and has ordered unmanned drones to rain down hellfire on Taliban and Al Qaeda militants in Pakistan.
They get no warning, much less an opportunity to have a lawyer challenge the evidence against them. But the administration stands ready to provide the full suite of constitutional and procedural protections to KSM, the man who orchestrated the act of war that killed 3,000 people.
It adds up to an illogical and destructive mess.
Trying terrorists in civilian courts has won the U.S. nothing. It hasn't affirmed American values, it has confused them. It hasn't put America in the world's good graces, and, even if it had, the potential prices are way too high.
This is war, and war is not waged in court. Those who attack are not criminals. They are caught not by cops who gather evidence in nice little baggies, but by military personnel or CIA operatives concerned with stopping the next attack.
They are sometimes held in CIA black sites, or at Guantanamo, where they are squeezed for intelligence. They are square pegs. It is a terrible, historic mistake to try to force them into the round holes of the civilian justice system.'