Ben Davis [University of Toledo College of Law]: "I have been greatly troubled reading the censored transcript of the hearing of Khalid Sheikh Mohammed before the Combat Status Review Tribunal (CSRT) – antechamber to the Military Commissions created under the Military Commissions Act of 2006. As I read what Mr. Mohammed said, my immediate reaction was "A mechanism is grinding – this man needs a lawyer, not a personal representative." When I learned that Senators Carl Levin and Lindsay Graham were permitted to watch the proceedings by closed-circuit television, I was reminded of the one-way mirror scene in the movie The Good Shepherd, and my disquiet was heightened. Finally, I note that no Supreme Court Justice was invited to watch also – an unusual step but possibly something that might have been warranted. I suspect all these CSRT's will get to the Supreme Court years from now and we will read a dissent like that of Justice Rutledge in Yamashita – maybe even one written by Justice Scalia. Why do I speak of Justice Scalia? See below.

By happenstance last week I met Justice Scalia and heard him speak passionately of his respect for Associate Justice Robert H. Jackson and – in particular – of Jackson's dissent in the Korematsu case. I commend to all those now reading and watching the news about Khalid Sheikh Mohammed and the other high-value detainees and the CSRTs to read the full text of Justice Jackson's address to the American Society of International Law on April 13, 1945 entitled The Rule of Law Among Nations. I excerpt only a few sections that resonate strongly today.

Justice Jackson said:

… But all experience teaches that there are certain things you cannot do under the guise of judicial trial. Courts try cases, but cases also try courts.

You must put no man on trial before anything that is called a court, if you are not prepared to establish his personal guilt. I do not, of course, mean that every step must be taken in accordance with technical common law rules of proof. The evidence to be received depends upon what the circumstances make available. But there is no reason for a judicial trial except to reach a judgment on a foundation more certain than suspicion or current rumor. Men of our tradition cannot regard as a trial any proceeding that does not honestly seach for the facts, bring forward the best sources of proof obtainable, critically examine testimony. But, further, you must put no man on trial if you are not willing to hear everything relevant that he has to say in his defense and to make it possible for him to obtain evidence from others. Nothing more certainly discredits an inquirry than to refuse to hear the accused, even if what he has to say borders upon the immaterial or improbable. Observance of this principle is of course bound to make a trial something of a sounding board for the defense. We all remember the war guilt trials which were begun by the Nazis and their collaborators in France. The Court was at once put to the choice of suppressing the defense or of allowing the trial to become an instrument for disseminating the views of the accused. Any United Nations court that would try, say, Hitler or Goebbels would face the same choice. That is one of the risks that are taken whenver trials are commenced. The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are organized to convict….

I merely say that our profession should see that it is understood that any trials to which lawyers worthy of their calling lend themselves will be trials in fact, not merely trials in name, to ratify a predetermined result."

If Khalid Sheikh Mohammed is as evil a man as he is said to be, I do not understand why we are so fearful of using mechanisms that provide transparency throughout the CSRT process – a process that opens ourselves to review as we stand in judgment of someone who is considered an enemy of the state. The Nazis at Nuremberg had their own lawyers. Mr. Mohammed should have one too – one of his choosing.

As a Kuwaiti, Kuwait could assert diplomatic protection of him. However, that does not appear to have happened. No other nations are available to assert diplomatic protection normally. So, it is left to citizens of the United States not only to tell the United States to protect us, but also to insist that certain things not be done in our name. If we are silent to the wisdom of Justice Jackson, then we are silent to not only our best selves but to our core selves."