On Friday, Attorney General Eric Holder announced that several Guantanamo detainees, including the alleged September 11th mastermind Khalid Sheikh Mohammed (KSM), and the alleged architect of the USS Cole bombing, are to be tried in federal district court. I would like to provide some food for thought regarding the decision to try these detainees in federal court rather than by military commission and point out a paradox of bringing these detainees under the “rule of law.”

Military commissions have a long history in the United States as a proper, and lawful venue for trying enemy combatants in general, and unlawful enemy combatants in particular, who violated the laws of war. The Supreme Court has recognized the lawfulness of military commissions, provided that the commissions are authorized by Congress and provide, “all the judicial guarantees which are recognized as indispensable by civilized peoples,” in accordance with the Geneva Conventions. While military commissions stop short of the due process procedures afforded to defendants in Article III courts, they are equally as legal as is any federal court. The Obama administration along with Congress has worked to strengthen the legality of military commissions and has shown a willingness to use them. In fact, many of the detainees to now be tried in federal court were previously charged before military commissions. Despite the bad name that military commissions have received, the Supreme Court recognizes that “a military commission can be regularly constituted by the standards of our military justice system…” and so the commissions are necessarily no more or less lawful than a federal court.

The next issue is whether a federal court, and specifically that of the Southern District of New York (this is where the World Trade Center was located), is an appropriate venue. The decision to try these detainees in federal court is ostensibly based on a set of protocols established the Department of Justice and Department of Defense to determine the most appropriate venue for trying detainees. One must wonder though whether part of the motivation for this decision is the increasing pressure to fulfill the promise of closing the Guantanamo Bay detention center.

The paradox of bringing these detainees, and potentially others, to the United States to stand trial in an Article III court is that while many praise this decision as upholding the highest standards of law and justice, it is entirely plausible that these detainees will not truly be afforded the same rights that others may receive in federal court. What are the rules regarding witnesses, discovery and lawsuits against the U.S. government? To what extent can the government invoke the state secrets privilege? In trying to achieve an abstract goal of achieving justice, it is likely that the means to achieving this goal will be riddled with contradictions.

It remains to be seen whether or not the decision to try these detainees in federal court is a good one. It seems as if the decision came down to weighing ideological goals against practical roadblocks. Federal court proceedings for these detainees are riddled with complications, both legal and political, as evidenced by the trial of Zacarias Moussaoui. While the details and implications of this new policy may be esoteric, they define what this nation stands for and how the U.S. may effectively protect its vitality while adhering to our Constitution and our guiding principles.