It has been painfully obvious since the advent of the current age of terrorism that the  loathsome tactics of terrorists do not correspond to the kinds of behavior the Geneva Conventions were written to regulate.  International law envisions nation states and their uniformed armies.  But what about when the perpetrators of violence across international boundaries are not states, or even uniformed movements?  How does a state under such attack protect itself and its citizens?

U.S. Attorney General Eric Holder, in his testimony before the Senate Judiciary Committee yesterday, was the latest of many officials to struggle with the question of how to treat captured foreign combatants who commit acts of war but belong to no state.

As he put it, ”the 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.”

But Holder decided (and President Barack Obama defended this decision) to try Khalid Sheikh Mohammed under federal criminal law in a civilian court.  He did not fully explain why, except to say that he concluded the chances of a fully successful prosecution were better in a civilian court.

It is a controversial decision, on many levels.  Opposition Republicans argue that to try him in a civilian court treats him as a criminal rather than a combatant waging war against the United States.

But Mohammed, or KSM as he has been known for years, was not captured on a battlefield, but in Pakistan.  He was captured by Pakistani agents, not by American soldiers.  He had been indicted by an American civilian court already in 1996 for his role in the Manila air plot and may have conspired in many other failed or successful terrorist attacks.  Most of the victims 9/11 were civilians.

Some claim that the procedures of a civilian trial will risk revealing classified information.  KSM – so the thinking goes — if he chooses to reject legal counsel and represent himself, may be entitled to see evidence that would not be disclosed in a military trial.  A civilian trial may take much longer – consider the process of jury selection, for example – than would a military tribunal.

These arguments have considerable weight, but nothing outweighs the importance of seeing justice done properly.  There is something reassuring in having the full force and transparency of the U.S. criminal justice system applied to this most heinous of terrorist attacks/crimes.  After the repeated water boarding of KSM and years of detention at Guantanamo, there will finally be an opportunity to apply to this case unambiguous traditions of jurisprudence that have been fashioned over centuries, rather than procedures defined in moments of national stress.