As I reported a few months ago, because the U.S. has declared war against Al Qaeda–and KSM is quite obviously a member of Al Qaeda–they can claim legal authority to detain him even post-acquittal, until the end of hostilities, under the authority granted by the Authorization to Use Military Force. The Bush administration considered doing this briefly with Osama bin Laden’s limo driver, Salim Hamdan–but because it makes a mockery of the American system of justice, they decided against it. But the options don’t actually end there.

“They have three sources of authority that would allow him to detain him, one of which is the AUMF, because it directly cites the 9/11 attacks in its language–the people who planned the 9/11 attacks are combatants, and are detainable under the AUMF,” Ken Gude, a human rights expert at the Center for American Progress explains. “Under the .000001 chance that they are acquitted, they will have that authority to detain them,” Gude says.

I’m awaiting all the liberty-loving Tea Partiers to start ranting about Obama Show Trials any minute now.

In fact, the Hamdan story suggests quite the opposite: thanks to just such a specially-created justice system, Hamdan, who the Bush administration painted as a dangerous terrorist plotting with bin Laden and arming warriors to attack America, was sent home last week to serve just a few months’ more in a prison in Yemen; meanwhile, more than 225 other detainees, some held almost 7 years without charges or trial, remain stuck indefinitely at Guantanamo Bay.

What kind of justice is that?

If anything, Hamdan’s case highlights the absurdity of creating a new system of military or “hybrid” justice to try people for crimes that could be prosecuted more easily, at less expense and with more legitimacy in our existing federal criminal justice system. (I’ve written previously about the debate over creating new courts for TWI.)

In his piece in the Times, Mahler, relying on a few neocons and former Bush administration officials, suggests that prosecuting suspected terrorists in the federal criminal justice system where we’ve always tried them would somehow mean the United States must relinquish its right to use military power to defend itself against enemies and imminent attacks.

In fact, it would mean no such thing.

Mahler writes that “ceding the military paradigm altogether would severely limit [Obama's] ability to fight terrorism. On a practical level, it would prevent him from operating in a zone like the tribal areas of Pakistan, where American law does not reach.”

But where the US tries suspected terrorists — whether in military commissions, federal courts or newly-created “hybrids” — has nothing to do with whether it maintains the right to shoot missiles into al Qaeda training grounds. As Mahler himself notes, President Clinton launched cruise missiles against terrorist camps in Afghanistan after al Qaeda attacked two American embassies in Africa in 1998. Mahler neglects to mention that the terrorists who carried out those bombings were subsequently tried, fairly and expeditiously, in a US federal court. Four terrorists were sentenced to life in prison without parole, plus $33 million in restitution to the bombing’s victims and the US government.

That one trial alone, completed just three years after the embassy bombings, embodies more success than the Bush administration has had in the last seven years of trying to bring to justice the perpetrators of its so-called “war on terror.” As I describe in this article, only three people have been tried by the Bush military commissions at Guantanamo Bay so far; two were sentenced to seven years or less in prison. The only terrorist sentenced to life in prison boycotted his trial and offered no defense at all.

In conflating the president’s right to use the US military with the question of where we should prosecute suspected terrorists, Mahler is perpetuating a misleading and dangerous idea that fighting terrorism requires all sorts of exceptions to the usual rules set out in the US Constitution and international law. But it’s precisely the attempt to carve out exceptions and new rules for supposedly special circumstances that’s led to the Bush administration’s dramatic failures in the terror war so far. No only have none of the perpetrators of the 9-11 attacks been brought to justice, but the evidence against many of them may be so tainted by torture and other abusive interrogation tactics that much of it may be completely unreliable and therefore unusable — not only in federal court, but in any military or hybrid justice system that could be created. (Even the Bush military commissions have had to suppress evidence found to have been extracted by torture.)

What’s more, any new military or “hybrid” system that seeks to bend the rules of evidence or rights of defendants will surely be challenged not only in the US court system, but in the global court of public opinion, as both our allies and our enemies see the United States compromising the very principles of liberty and justice it claims to be fighting for. That’s not going to help us any in the war against terrorism.

Mahler is right that the new administration will need to clarify the meaning of the “war on terror” and make clear who we’re at war with and what it’s entitled to do to protect the United States against that enemy. But it will have a lot of explaining to do if it also decides that our existing federal and military courts, which have proven quite capable until now, are not up to the task of bringing suspected terrorists to justice.

Holy Land former chairman Ghassan Elashi and Shukri Abu-Baker, the group’s chief executive, were convicted of a combined 69 counts, including supporting a specially designated terrorist, money laundering and tax fraud.

Mufid Abdulqader and Abdulrahman Odeh were convicted of three counts of conspiracy, and Mohammed El-Mezain was convicted of one count of conspiracy to support a terrorist organization. Holy Land itself, accused of giving more than $12 million to support Hamas, was convicted of all 32 counts charged.

Critics of using the federal courts to try suspected terrorists often claim that military commissions or special national security courts are needed to handle sensitive classified evidence or testimony of informants who cannot be identified.

In the Holy Land case, however, the federal court had no problem allowing the federal prosecutors to introduce and rely upon the testimony of an anonymous Israeli witness who testified as an expert on funding for terrorism. Although critics have denounced that tactic, the defendants’ lawyers were allowed to cross-examine the witness and were given the basis of his credentials as an expert, apparently solving the potential Sixth Amendment Confrontation Clause problems.

“Witness anonymity to some extent raises concerns, but the court has to weigh the national security interest against the defendant’s right,” explains Peter Margulies, a law professor at Roger Williams University and expert on national security law.

Although I didn’t watch the Holy Land trial and won’t venture to comment on its fairness, it does counter the argument made by people like Benjamin Wittes, Jack Goldsmith and Neal Katyal, which I’ve reported on before, in favor of creating special national security courts to handle classified evidence and testimony from important witnesses who need to remain anonymous for national security purposes.

As Human Rights First demonstrated in a report released in May, federal court trials of suspected terrorists have actually been far more successful than any military commissions have shown themselves to be.

Since September 2001, about 150 suspected terrorists have been convicted in US federal courts. By contrast, only three have been convicted by the Bush administration’s military commissions – one in a plea deal, another in a trial boycotted by the defendant, and the third –Salim Hamdan, Osama bin Laden’s driver, originally accused of being one of the masterminds of the 9/11 attacks — resulting in a conviction of just a few months more than time served. I heard today that he’s already on a plane back to his home country of Yemen.