I keep talking to people about this, and they keep responding, "Oh, Obama probably did it because they don't have enough evidence to win in civilian court." And that's not true, and it's not even the point. The point is, George W. Bush pushed the dangerous idea that the 9/11 attacks were acts of terror by states, not individuals - and that was the rationale for invading Iraq. Trying the 9/11 attackers in military tribunals is saying the Bush-Cheney doctrine was right, and lays the groundwork for bipartisan support of pre-emptive attacks:

The Justice Department's restoration was among the most important tasks facing the Obama administration: The Bush administration's political appointees had dismantled the hiring practices that allowed career attorneys to make hiring decisions, and gave more weight to ideological conformity than legal expertise. The result was a Justice Department where incompetent ideologues with political interests in mind were given more power than career attorneys concerned with upholding the law. Michael Mukasey began the process of de-politicizing Justice after he replaced Alberto Gonzales; Eric Holder has continued it.

In light of this, I think Andrew Sullivan's observation of the conflict between Rahm Emanuel and Holder over the prosecution of the alleged September 11 conspirators is especially important:

But whatever your view, this must not, it seems to me, be a politicized decision. It should be a matter of justice. And to go from a Rove-driven Justice Department to an Emanuel-driven Justice Department is not the change most of us who supported Obama wanted to see. Or believe in.

I'm not interested in going from a Justice Department whose behavior is driven by Republican political interests to one whose behavior is driven by Democratic political interests. That's going nowhere at all. Retreating on the decision to try Khalid Sheikh Mohammed in civilian court won't undo all the important changes the administration has made to the Justice Department, but it would reinforce the idea that the Department is a political fiefdom rather than an entity that exists to enforce the laws of the United States and secure the rights of its citizens.

A separate point is that Republicans won't budge on Gitmo anyway, no matter what Lindsey Graham says, so Emanuel's choice isn't even smart politics.

There literally is no end to the extent by which Republican politicians will lie, distort, and manufacture statements in their efforts to disrupt, deny, and destroy the Obama administration's attempts to govern. At today's Senate Judiciary Committee hearings on 9/11 trial, the Fort Hood shooter, and terrorism, Sen. Jeff Sessions (R-AL) decided to flip-flop on the designation of the Gitmo detainees. Are they "unlawful enemy combatants" or are they "prisoners of war"?

SESSIONS: The enemy, who could of been obliterated on the battlefield on one day, but was captured instead does not then become a common American criminal. They are first a prisoner of war, once they're captured. The laws of war say, as did Lincoln and Grant, that the prisoners will not be released when the war - until the war ends. How absurb is it to say that we will release people who plan to attack us again?

Sessions seems to be saying that because these detainees were captured by the military, they have become prisoners of war and should not be released - even if found not guilty or after serving a prison term (assuming less than a life sentence) - until the "war on terror" is over (which, under a Republican point of view, will never be over). But on the other hand, SecDef Don Rumsfeld and the other fun-loving bunch of Bushites were very firm about NOT calling them "prisoners of war" because they were not supposed to get rights under the Geneva Convention (or any other form of legal writs - see waterboarding, justification of).

In fact, as one of the commenters at the TPM post notes, there was public law developed to explicitly designate any non-US citizen who was accused of supporting terrorism or acting against the United States as a terrorist as being eligible for military commissions.

I thought like you until I read this, from the Military Commissions Act: "‘(e) Geneva Conventions Not Establishing Private Right of Action- No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action."

See: here.

This discussion becomes quickly complex with legal passages as a debate over whether the military tribunals should take KSM or if the federal court system has adequate jurisdiction. But it's just so interesting how Republican politicians adroitly jump back and forth as to the question of the detainees' status to how it best fits their argument of the day - are we talking about Geneva convention rights, or are we talking about the process of legal courts?

And because I want to give credit to the interesting comments over at TPM, I will close with the following observations by the commenters:

"I guess when the Right/GOP can say, print (Palin's myth filled book), promote anything without any accountability by the Beltway Press, the GOP has no need for intellectually honest consistency in their claims."

"When did Sessions stop playing the banjo?"

UPDATE: Clarified the guilt point.