I believe that the President and Holder have defined this strategy (try some in civil courts, others in military, based on specifics of the case) to eventually bring about this closure. — Stephen Peter

Those going to trial in Military court for the Cole bombing hit a military target, so yes they should be tried in a Military court. -bernbart

Then why, Stephen and bernbart (and anyone else I missed in comments after Page 12), aren't you - or any Member of Congress - suggesting that we actually use our existing, regular MILITARY COURTS, and their special law-of-war courts-martial for non-citizens and citizens alike, to try these prisoners?

That's right: "military commissions" ARE NOT our regular UCMJ-governed "military courts."

If you missed that distinction, YOU WERE MEANT to - the Congress and the media have long pretended that NO OTHER OPTION BUT irregular military commissions exists to civilian trials for accused war criminals.

From someone who's been there (in front of the Guantanamo Military Commissions):

Hi. Lt Col Frakt here (I should note that my views don't represent the views of the Air Force or Department of Defense – I'm actually responding in my capacity as a law professor, not as a Reserve JAG).

Violations of the laws of war by enemy prisoners of war must be tried in military courts-martial, under the identical rules and procedures we use for our servicemembers. The idea of a military commission was to try persons that President Bush determined were not entitled to POW status whom he termed "unlawful enemy combatants."

[...]

President Obama has repeatedly made the distinction that violations of the laws of war may be appropriatedly tried in military commissions. This is a true statement, although military commissions have traditionally been utilized when civilian courts are unavailable, a situation that we do not currently face. That being said, I would not object to military commissions using fair rules and procedures being used for actual war crimes. The reality is that few, if any, of the detainees have actually violated the law of war. The Bush Administration had a theory that any act of fighting by a "unlawful enemy combatant" violated the laws of war, but this theory was repeatedly rejected by the judges in the military commissions themselves. - David Frakt, writing yesterday

http://emptywheel.firedoglake.com/2009/11/17/david-frakt-on-material-support-charges-and-military-commissions/#comment-200135

If the detained were afforded POW status, we'd know their names, their locations, they would be treated humanely, they would have ample rights to challenge their status (and should be freed, absent any accusation of crime, if POW status is unwarranted), they could be tried [...] with full process according to ONE standard of law, and they could be held under open, humane conditions, unabused in all cases, for the duration if their only act was to make war against the United States. To my mind, this meets the requirements of justice, of human dignity, and also security. Under this approach, I am sure some now held, or some captured in future would be released, and some would be held until the conflict is ended, as has been the case in every war.) -wgsalter

That's quite an "if" at this point, wgsalter. But, as it happens, the habeas corpus appeals of the detainees that are finally being heard in federal district court, thanks to Boumediene, are at last providing the fair hearings and attempting to make accurate, legal determinations of combatant status - in place of the catastrophic failure of the military to do so - as to who really is an enemy soldier/fighter legally detainable for the duration under the law of armed conflict.

Yet to be litigated on the merits, however, are the legal treatment conditions (above Common Article 3 minimums) of their detention 'for the duration.' Barring such litigation, or Congressional oversight, do you really think that the Obama administration will suddenly (very belatedly) start providing POW privileges to the remaining captives? Nothing would end their detention faster, probably, than the requirement that those detainees be treated the same way German POWs in America were treated during WWII.

I elaborated here: http://emptywheel.firedoglake.com/2009/11/17/david-frakt-on-material-support-charges-and-military-commissions/#comment-200116

Please, everyone, if you haven't already, read (MC military defense counsel for Jawad) Lt. Col. David Frakt's recent explanations in his interview with Marcy about the current military commissions and their proven flaws:

http://emptywheel.firedoglake.com/2009/11/17/david-frakt-on-material-support-charges-and-military-commissions/

And if you want to know - not the sanitized, distorted Pat Buchanan and Lindsey Graham version - but the real, sordid history of (supposedly) battlefield-exigent military commissions/tribunals in this country, please read Louis Fisher's report for the Congressional Research Service: http://www.globalsecurity.org/military/library/report/crs/rl32458.pdf

And ponder the meaning and import of this important sentence on the future legal viability of the Constitutionally-challenged military commissions in emptywheel's latest post on this subject:

In addition, both Mustafa al-Hawsawi and Ramzi bin al-Shibh have active challenges to the constitutionality of the military commissions [under consideration by a federal appeals court], which, at the very least would hold up the military commissions themselves (even assuming that they were found to be constitutional).

http://emptywheel.firedoglake.com/2009/11/19/republicans-refuse-to-hear-holders-claims-about-civilian-trials/

More from Professor Frakt (commenting in the emptywheel interview thread):

Ghailani was already indicted in the SD of NY when he was captured abroad, but instead of handing him over to the U.S. Marshals, he was taken to Gitmo and he was charged before the military commissions with the exact same offenses that he was already indicted for. Several other individuals involved in the Embassy bombings in Kenya and Tanzania had already been tried and convicted. This showed that the claim that we had to utilize military commissions because of battlefield evidentiary limitations was nonsense. The US Attorney that indicted Ghailani obviously thought that he could prove the case when he indicted him, so it was very hard to argue that the case needed to be in a military commission [as opposed to a UCMJ-governed military court-martial or federal trial].