I did not say you believed in torture, I said that you argued that a one time grave threat justified overriding the rule of law based on an argued ability to limit the consequences of damage to the rule of law.

Good response otherwise, but I maintain that you still don't quite get my position.

The "grave threat" of KSM or anybody is not my concern, it's that transferring these cases now to US court would be a travesty of justice.

I don't think the current tribunals should go on and neither do I think it is in the interests of justice for people like KSM to potentially get a free pass because the Bushies mangled this thing. We need a third way and from what I've heard Obama say I'm encouraged we might find a just resolution.

I find, working in the criminal justice system, that the law is applied with more elasticity, with an ultimate eye towards serving the interests of justice on a case by case basis, than a lot of the commenters here seem to realize. And yeah, the really bad guys get cut fewer breaks. It's true.

Yes, I'm proposing a compromise, unsatisfying as compromises always are, with some damage to the rule of law, but the minimum (as I see it) possible.

It's always more comfortable to argue for the gleaming, unadulterated principle rather than the icky compromise, but this time I'm for the compromise.

So, just to be clear: on what evidence do you base your contention that KSM is in fact the 9/11 Mastermind?

Mostly from a book I read once called The 9-11 Commission Final Report. You may have heard of it. It was independent, and often critical, of the Bush administration.

That, and I tend to believe the report from a military judge that contends that KSM and his co-defendants sent him a note saying they would like to confess and plead guilty.

But I suppose this could all be a grand conspiracy to dupe me. What do I know? What do any of us really KNOW, you know? Isn't reality just a subjective concept?

Lad, I think your heart is generally in the right place, but could you come down off your high horse a bit? And try to blow not quite so hard?

Personally, I think it's an abstract argument. There is a lot of pre-torture evidence on KSM.

Oh, I agree. I never claimed it to be anything but abstract. From what I understand about KSM, I think he'd probably get convicted in regular court even with the tainted evidence suppressed.

But I'm not 100% sure, and I don't know about other cases where really bad guys might walk.

And, for the record, I'm not just freaking out about this now that Obama is about to get sworn in - I've been agitated about this since TortureGate: Day 1.

But anyway, I respect your opinion and appreciate the thoughful and substantive debate. Cheers.

Why not attempt trial in a federal district court, and see if a conviction can stand notwithstanding the constitutional violations? There are myriad ways the constitutional infirmities could be found and a conviction yet upheld.

I'm feeling pretty sure - especially after consulting several colleagues on this today - that KSM's case is strong enough that it might very well result in conviction in federal district court. But I was only bringing up a KSM dismissal as a worst case scenario. I'm not comfortable wit the idea of just wholesale transferring all the detainee cases into US court. I can think of almost endless ways that will unfairly compromise the prosecution, and provided unearned windfalls for defense, that might or will result in miscarriages of justice.

Otherwise, release KSM and have CIA folks stay on him like white on rice.

Here's where I depart slightly from Obama's stated concern. He says he doesn't want some of the Gitmo detainees to be released because "they might blow us up." I don't care about that. Lots of people want to blow us up all the time; we're always on tap for that.

My concern is this: the prosecution, as well as the defendants, is entitled to a fair trial, under our rule of law. It's not fair to the prosecution to suddenly change all the rules on them, to their great disadvantage, 7 years into the process.

This is a unique problem brought on by the unique and mind-boggling incompetence and malfeasance of the Bush administration. That's why an "easy" solution such as "just transfer them all to district court!" is unsatisfactory and why a compromise, third way such as the president-elect is actively considering is the one most in the interests of justice.