Time for military justice

Nearly seven years after capturing self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed, America still hasn't brought him to trial. Nearly eight and a half years after the Twin Towers fell, America still hasn't developed a coherent policy on the status of such fanatical enemies in our custody. It is far past time to end our legal confusion and minimize our terror risks by passing federal legislation to clarify what rights terror suspects do -- and do not -- have.

Sen. Lindsey Graham, R-S.C., wants to do just that with a bill to create "a new judicial capacity." He makes a convincing case that the military justice system is the right venue for nearly all terror suspects. He brings more than three decades of experience as a military lawyer to this critical issue -- and brought it down to this basic level Monday during a phone-in news conference from Greenville: "We're not fighting crime, we're fighting a war."

He added this challenge to President Obama: "Do you really believe we're at war?"

Still, Sen. Graham expressed optimism over what he detects as the administration's growing willingness to reconsider its policies on enemy combatants.

Attorney General Eric Holder sent a welcome signal on that front in a Sunday New York Times story that quoted him as now being "flexible" on the possibility of using a military tribunal to try KSM. Mr. Holder already has shown needed flexibility in recently retreating from his foolish plan to try that extremely high-profile defendant in New York City.

Now Sen. Graham and other legal experts are trying to persuade the administration to put KSM in a military, not a civilian, court. That group includes South Carolinian Billy Wilkins, former chief judge of the U.S. Fourth Circuit Court of Appeals, who joined Sen. Graham at Monday's news conference.

Judge Wilkins dismissed the mistaken notion that military justice delivers "automatic guilty" verdicts, saying, "Just the opposite is true." Cases "can be handled just as fairly and much more efficiently" in the military system, which unlike civilian courts can "protect top-secret information," he said. The judge expressed security concerns about making federal court facilities terror targets, too.

Sen. Graham cited obvious objections to the reading of Miranda rights to the Underwear Bomber, who allegedly tried to blow up an airliner over Detroit on Christmas Day. Yet the senator also stressed the need for a new "due process friendly" law requiring an "annual review" to certify valid cause for detaining terror suspects indefinitely as military prisoners.

Though Sen. Graham said the Bush administration "did a very good job" of going after our enemies, he added that it was "very late in the game" in involving Congress on how to treat military detainees.

Sen. Graham wants to reconsider the issue through legislation to "achieve a balance that doesn't exist today between national security and the rights of military detainees." He said conversations with Obama administration officials "in the last couple of days" have raised his hopes of finding common ground on that bill.

But first President Obama must concede this common-sense point: Our civilian courts are not a winning venue for waging war on terror.