Kevin O’Brien: Due process for terrorists? Really?

More than six years after Americans watched Muslim terrorists destroy the World Trade Center, damage the Pentagon and kill more than 3,000 innocents, the Bush administration is about to attempt justice for some of the high-ranking alleged perpetrators.

Six al-Qaida members, a cast headlined by Sept. 11 mastermind Khalid Sheikh Mohammed, are headed for trial by a U.S. military tribunal.

The questions before the court will involve 169 charges, including conspiracy, murder in violation of the laws of war, and terrorism.

The question before the nation is broader: Are we more interested in defending ourselves from terrorists or defending terrorists against intrusions upon their “rights”?

For the last five or six years, the defendants have lived at the U.S. detention facility at Guantanamo Bay. The key word in that sentence isn’t “defendants,” “detention” or “Guantanamo.” The key word is “lived.” That’s the thing they got to do that their victims didn’t.

I can’t help but feel a little apprehension about seeing them go before a court – even a military court. We haven’t done very well at justice in this war.

In fact, lawyers have provided some of the finest aid and comfort to the enemy that money can buy. In doing so, they’ve worked hard to sow confusion in Westerners’ minds about what constitutes justice.

War isn’t a courtroom drama. The calculations of the people who must save their own lives by pulling a trigger shouldn’t have to include, “What would a lawyer say about this?” Yet those calculations are made every day. But only by our side.

We ought to be ashamed that our own good men have been wounded and killed because hesitation is built into their rules of engagement.

We ought to be ashamed that American lives have been sacrificed to fears that some terrorist might file a lawsuit against his interrogators.

What we don’t need to be ashamed about – not for one second – is that Khalid Sheikh Mohammed got water up his nose before he cracked. By the standards of his own organization, which has a penchant for cutting off the heads of its captives and gleefully packing the videotapes off to Al-Jazeera – Mohammed says he himself wielded the knife that killed journalist Daniel Pearl – he’s gotten off pretty light, so far.

The people we’re fighting have never shown the slightest inclination toward playing by the rules of the Geneva Convention, or anything else that might pass for “civilized” warfare.

They do not wear uniforms, nor do they act under the auspices of any nation or government. They target civilians. They don’t mistakenly commit the occasional atrocity in the heat of battle. Rather, they strive for atrocities, planning them carefully for maximum loss of life and shock value.

Their most effective weapons are terror, stealth, propaganda and our own civilized sensibilities, which they understand perfectly, sneer at, and use against us at every opportunity.

And some of their most effective propagandists, unwitting and otherwise, are people who demand that Americans focus on the legal niceties of this war and the legal rights of enemies who find our laws quaint, silly and useful.

So, although there were worse ideas than leaving Mohammed and his boys to rot in the warm Cuban breeze, the complaints of the I-dotters and T-crossers have won them a day in court. It isn’t the court they would have preferred – a civilian trial court where the whole legal circus could have come to town. But with the military promising all kinds of openness and transparency, the defendants and their advocates probably will have ample opportunity to spew their venom and insult our intelligence.

With the legal strategizing and handicapping already well under way, the Telegraph of London offered this bit of odd phrasing: “Legal experts said the willingness of Mohammed, known as ‘KSM’ in intelligence circles, to take credit for terrorism could complicate the tribunal process.”

Complicate? Killers who brag about their murderous exploits usually simplify the process.

Then again, maybe those legal experts are hoping for an acquittal.