President Barack Obama and Attorney General Eric Holder believe the enemy has Constitutional rights. So far, the Supreme Court has not agreed with that assertion. We should put the theories to the test by trying al Nashiri and Khalid Sheikh Mohammed at Gitmo now.

When Holder brought Ghailani to federal court for trial, he did so knowing a federal judge might not allow the seller of the TNT to testify as he was first identified during Ghailani’s detainee interrogations. Instead of railing against bestowing Constitutional rights upon non-U.S. persons who wage illegal war, Benjamin Wittes and Jack Goldsmith seem to argue we should just wait the enemy out in their op-ed today in the Washington Post:

The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations. Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion – as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.
…
Imagine that Ghailani had been acquitted on all counts. The administration would then have faced a terrible choice between releasing him or — as the attorney general and Judge Kaplan have said is possible — continuing to hold him in military detention indefinitely despite his acquittal. The first option would be unsafe for the nation and suicidal politically. The second option would look terrible in light of an acquittal and would harm the legitimacy of every subsequent terrorist trial.

This terrible choice — which came close to becoming a reality — reveals why military detention is fundamental and appropriate here. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which the country is at war. Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

As civilians, Ghailani, al Nashiri, and KSM all waged illegal war against the United States by attacking our embassies, the USS Cole, and both civilians and military personnel on 9/11. If no evidence exists to support those assertions, then both President Bush and President Obama had no inherent or Congressional authority to continue to hold them as detainees. Yet abundant evidence exists that all three committed war crimes resulting in the deaths of U.S. persons.

The Supreme Court reaffirmed the President’s authority to indefinitely detain the enemy back in 2004 so their detention is not at issue. That war crimes were committed, they require an accounting, and America’s enemies should not be afforded Constitutional rights are the issues.

Attorney General Holder declined to prosecute Ahmed Ghailani for his post-9/11 activities as a member of al Qaeda. It is telling that Holder announced last year that U.S.S. Cole bomber al Nashiri would be brought to a military commission in the United States only to let the DOJ withdraw those charges in August 2010, as the Washington Post reported:

[C]ritics of military commissions say the Nashiri case exemplifies the system’s flaws, particularly the ability to introduce certain evidence such as hearsay statements that probably would not be admitted in federal court. The prosecution is expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri. Neither witness is expected at trial, but the FBI agents who interviewed them will testify, said Nashiri’s military attorney, Navy Lt. Cmdr. Stephen C. Reyes. “Unlike in federal court, you don’t have the right to confront the witnesses against you,” he said.

Three of the prosecution’s witnesses against Ahmed Ghailani were not available because they died since testifying in the 2001 trial against the four previously arrested for the 1998 attacks upon our embassies. If our national policy becomes delaying war crime prosecutions until the end of hostilities, it imbues war criminals with a temporary immunity and risks their outliving the means to bring them to justice.

Judge Kaplan’s ruling that the testimony by the seller of the TNT to Ghailani was “fruit of a poisoned tree” is exactly why President Obama and Attorney General Holder hold out hope to someday bring more Gitmo detainees onto U.S. soil and to trial, regardless of the venue. Yet after the Ghailani verdicts, this and future Congresses are unlikely to ever fund bringing them here for that purpose.

This war will not end in our lifetimes or theirs and no President will release al Nashiri and Khalid Sheikh Mohammed alive to again wage illegal war upon the United States. Should they be acquitted due to Constitutional protections, America will finally see the wisdom of our Founding Fathers who gave no authority to the Judiciary branch in war. If they are convicted and pay the full measure for their war crimes, justice will at last be served.