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The decision to try KSM & Co. as civilians drew predictable applause from the American Civil Liberties Union and other civil libertarians. But they should be careful what they wish for. From a criminal-justice standpoint, there are many irregularities about these cases, not least the fact that the government concedes (wrongly in our view, but that and a dollar will buy you a cup of coffee) that some of the defendants, including KSM, were "tortured" by its agents.
Yet the political pressure for a conviction will be immense. "Anything short of slamdunk convictions will empower the president's critics," opines Devlin Barrett of the Associated Press. Not only that, but an acquittal would put the administration in the position of having either to free a dangerous terrorist or to hold indefinitely someone who has been acquitted--either way, a disastrous failure for the administration's antiterror policies.
The judiciary will not be immune to these pressures. No trial judge will want to be known as the Lance Ito of 9/11. More importantly, appeals judges--including Supreme Court justices--will surely hesitate to let KSM off on a technicality.
But one man's technicality is another's violation of due process; and the corollary of treating KSM like ordinary criminals is treating ordinary criminals like KSM. This column approves of aggressive interrogation to gather intelligence from terrorists, but there is little doubt that some of the methods that were used would have been abusive had they been applied by law-enforcement agents to domestic criminal suspects.
When appellate courts decide questions of law, they set precedents for future cases. If they make allowances for the exigencies of the war on terror in order to uphold convictions of KSM and his associates, it could end up diminishing the rights of ordinary criminal defendants. That's why the smart civil-libertarian position is to oppose trying terrorists as civilians.
You see ;words do indeed matter. Under Bush ,the administration would argue successfully that the interrogations were conducted under existing law ;if the evidence was being submitted to a tribunal. But both Holder and the President have declared to the world that KSM was ,in their words ,tortured. 
