In the middle of June 1942, two German U-boats landed on the shores of the United States, one on Long Island, N.Y., and another on Pointe Vedra Beach south of Jacksonville, Fla. The U-boats were loaded with chests of detonators and explosives suitable for a year's worth of operations targeting U.S. cities and military installations. Aboard were eight Nazis who spoke perfect English and had American ties. Most of them immediately changed out of their uniforms and buried them in the sand, where the Coast Guard later found them. That simple guerrilla tactic made the Hitler hit men no longer eligible for POW status if caught—they could not be identified with an army and an observable chain of command.

When they were caught, two surrendered, were held and repatriated after the war. The other six were tried by a military tribunal and executed three months later.

Enter Khalid Sheikh Mohammed and his four 9/11 co-conspirators. As an al-Qaeda leader captured in Pakistan by CIA agents in 2003, he wore no uniform and answered to no observable chain of command. At the time of his capture, The Wall Street Journal noted: "The terror leader could face months, if not years, of interrogations." That turned out to be true. It also reported, "Washington has stressed that its priority isn't to prosecute terrorists, but to gather intelligence to block future attacks." That, according to former deputy attorney general Paul McNulty and others I have spoken to at the Justice Department, was the initial purpose of detaining terror suspects at Guantanamo: to prevent future attacks. Only later did the Bush administration, along with the Supreme Court and Congress, create military commissions for the purpose of trying KSM and others.

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