Know when to hold them

So what happens if Khalid Sheikh Mohammed and other 9/11 masterminds, whose trials Attorney General Eric Holder has decided will take place in the criminal justice system in New York, get off on a technicality or are somehow O.J.-Simpsoned by a jury? Can we still hold them? If not, where do they go?

These questions have been on the minds of millions of Americans, including members of the Senate Judiciary Committee. The Committee recently convened an oversight hearing to examine Holder’s decision to bring the perpetrators of the worst-ever terrorist attack on American soil to trial in civilian court, rather than before a military commission, where legal procedures more in line with the wartime circumstances of the enemy’s capture would apply. Holder’s responses to these questions before the committee, however, reveal a troubling lack of recognition that a lot can go wrong once you bring KSM and company into the Article III court system — including having to contend with what the Supreme Court may have to say about what happens to these defendants if something indeed does go wrong at trial.

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Ben Lerner is director of policy operations at the Center for Security Policy in Washington, D.C.