The Right Way to Try KSM

That is the title of an oped of mine in the Washington Post, which distills the argument made in this recent post on Lawfare. The oped begins:

Here's a simple proposal to break the impasse over how to proceed against Khalid Sheik Mohammed and his colleagues: Press charges in both military commissions and in federal court. Call it the John Allen Muhammad model.

I won't repeat the entire argument. I will say that since I first posted it, I have heard no reason to think it an implausible resolution to this festering problem. And that gives me a certain still-tentative confidence in it. Its viability is obviously fact-dependent; it only works if there exist in fact two separate sets of charges that prosecutors can sufficiently disentangle from one another that an acquittal on the first would not preclude the proving of facts necessary to the trying the second. Without knowing more than anyone outside of government knows about what admissible evidence the government has, this question is inherently unanswerable. Still, my instinct is that the matter should be navigable. Even if the second set of charges is merely colorable and never proceeds beyond the charging stage, it would serve an important symbolic function.