Aclu Wrong — Military Commissions Are Not Unconstitutional


Only weeks ago, President Obama appeared to have made up his mind to bring Khalid Sheikh Mohammed and his fellow 9/11 co-conspirators to New York City for trial in civilian courts. Now, however, news reports suggest that the president may be poised to abandon the civilian court trials altogether and try the 9/11 plotters in military commissions.

Some of president’s usual allies aren’t happy and are mounting efforts to persuade the president not to change his decision to try KSM in federal court.

On March 7, the American Civil Liberties Union ran a full-page ad in the New York Times that depicted President Obama’s likeness “morphing” into that of President George W. Bush. “What will it be Mr. President?” the ad asks. “Change or more of the Same.”

“Obama can vigorously prosecute terrorists and keep us safe without violating our Constitution,” the ad goes on to say. The implication, of course, is that trying KSM and his co-conspirators in a military commission would violate the Constitution.

But that’s not what the law is. The U.S. Supreme Court has made it clear the president, with authority from Congress, could establish military commissions to try these terrorists. In 2006, Congress provided its support by passing the Military Commissions Act. And, the attorney general has acknowledged that we will use that law to try some of the detainees at Guantanamo Bay. These are the military commissions that the ACLU seems to think would violate the Constitution.

The ad also suggests that the “criminal justice system will resolve these cases more quickly and more credibly than the military commissions.” Remember, however, that KSM was before the military commission at Guantanamo Bay and said he wanted to plead guilty. I cannot think of a quicker and more successful outcome than accepting his guilty plea.

The attorney general justified his decision to try KSM in civilian court saying that it would showcase our great system of justice, what with its presumption of innocence and all. When asked what would happen if KSM were acquitted, however, he assured Congress that “failure of conviction is not an option.” In other words, KSM will be convicted. I’m not sure how the ACLU can say KSM would be more quickly and more credibly treated in civilian courts, which presume innocence, after these particular statements.

The ACLU’s ad unnecessarily politicizes a national security issue and gets the law wrong when it suggests that military commissions are unconstitutional. There’s no need for those kinds of tactics, especially from the ACLU, which whether you agree with it or not, has been one of the nation’s pre-eminent legal organizations.

It takes nothing away from President Obama’s leadership as president of the United States to hold trials of many of the terrorist detainees in military commissions. In fact, doing so would reflect the views of the American people that these terrorists should be treated, first and foremost, as enemies of the United States.

Sen. Jon Kyl is the Senate Republican Whip and serves on the Senate Finance and Judiciary committees. Visit his Web site at or his YouTube channel at


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