No military commission for KSM

BECAUSE we are not wimps in the Midwest, let's give Khalid Sheikh Mohammed, aka KSM - the alleged 9/11 mastermind - a fair trial here, in the best American tradition. And if the jury convicts him and sentences him to death. Let's hang him.

Holding the trial in Toledo would pose security dilemmas. Transporting the defendant 50 miles to and from the federal prison in Milan, Mich., would be problematic.

But there must be a place in Middle America where this trial could work. We should provide it, for ourselves and for the world. It would show what America is.

The Obama Administration was going to file charges against Mohammed in New York, the scene of the crime. But after an uproar, people in high places began looking elsewhere, including military commissions.

Such commissions, whether President Obama or former President George W. Bush created them, have problems. The U.S. Supreme Court has said so twice. Those problems are simple to understand:

•They are illegal, because they are not regularly constituted under the Geneva Conventions and international law.

•There is no need for them. We have used military commissions in the past only under conditions of martial law, in occupied territory (notably Germany after World War II), or when there was insufficient federal law (as when President Franklin Roosevelt formed two commissions).

•Military commissions are cynically structured to provide third-class justice, where courts are first-class and courts-martial are second-class.

A recent report by the bipartisan Congressional Research Service identifies specific deficiencies of military commissions, compared with trials in federal criminal courts. In some cases, statements made in response to torture are admissible. There is no bar on evidence gathered by impermissible interrogation methods.

Evidence seized outside the United States without a search warrant is not excluded. Hearsay evidence is admissible if direct testimony is not available or if it would have an "adverse impact" on military or intelligence operations. The government cannot be compelled to disclose classified information.

The accused is entitled only to "reasonably available" defense counsel. There is no mention of attorney-client privilege. In a capital case, the accused is entitled to additional counsel only "to the greatest extent practicable." Law may be applied after the fact.

The defendant in a military commission has no right to a speedy trial. Such trials may be closed to the public. Conviction requires the votes of just two-thirds of jurors, not all of them. A defense lawyer gets just one peremptory challenge - that is, the ability to reject a potential juror without stating a reason.

Military commissions allow evidence gained by coercive techniques and torture to be admitted and evaluated at trial. They avoid the constitutional guarantees that are the essence of fair trials.

The argument about military commissions versus civilian courts is not about fine points of legal niceties, such as jurisdiction or charges. At its heart, it is about how to convict people we have tortured. Even for those who were not tortured, such as the Christmas bomber, it is an unfair practice derived from an illegitimate birth.

The commissions represent ersatz justice - an attempt to clean up the mess made with evidence by people who took America to torture. Those people may think they can get away with what they did by holding trials outside the view of Americans and the world. They are wrong.

Terrorism trials can be - and have been - held in federal court, with juries bringing guilty verdicts. Khalid Sheikh Mohammed can be charged with crimes in our federal law. America has nothing to hide, even though some of our leaders seek to hide their complicity in torture.

I have no sympathy for Mohammed. It is important that America hold his trial in its first-class system, with a jury of Americans hearing the evidence. The presiding judge can apply tools used in previous federal terrorism trials.

Because the trial would be unprecedented, we must have the courage to trust ourselves and our ordinary system of courts. It will provide a public record of the facts and charges in the case. Competent counsel for the United States and the defendant should be able to argue every permissible point, so that Americans and the world have no doubt that the trial was fair.

Such a trial will be a measure of our return to sanity, a recovery from a permanent state of fear. And along with Mohammed, let's take a hard look at those who put in place the torture that will require exclusion of much evidence in the case.

Torture is not OK. It violates what America is about.

Benjamin G. Davis is an associate professor at the University of Toledo college of law.