THE BURNED OVER DISTRICT

Actually since the attack on the World Trade Center we have constantly been told we are at war with an ill defined gang belonging to no state. And now thanks to a military judge, we find out we have been at war with this gang prior to the WTC attack but we don't know exactly when it started. This state of war is necessary if we are to try 5 prisoners in Guantanamo in military courts so we can insure a guilty verdict without an pesky torture claims.

The United States was at war with al-Qaida at the time of the 9/11 attacks, the military judge presiding at the trial of the alleged plotters has ruled. But he sidestepped a crucial question: When precisely did the war begin?

For now, Army Col. James L. Pohl wrote in his 20-page ruling dated Wednesday, it is "unnecessary to decide a date certain for commencement of hostilities."

The ruling was a crucial pretrial threshold toward the capital trial at Guantánamo of accused mastermind Khalid Sheik Mohammed and four alleged al-Qaida accomplices in the attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon. If America was not at war on Sept. 11, 2001, the five men could not face trial by military commissions.

Pentagon attorneys for a Saudi man accused of conspiring in the 9/11 attacks, Mustafa al Hawsawi, raised the question in a motion to dismiss his charges. They argued that the U.S. was not at war during the time Hawsawi allegedly helped some of the hijackers with funding and travel to the United States, and could only face trial in federal, civilian court.

Prosecutors in their charge sheet date the start of hostilities to Osama bin Laden's 1996 "Declaration of Jihad Against the Americans." Lawyers for another alleged conspirator, Ammar al Baluchi, argue the war began when U.S. forces invaded Afghanistan Oct. 7, 2001, and plan to likewise later challenge the judge to set an alternative start date.

Hawsawi's lawyers argued in a series of pretrial hearings that the war court itself was bound by an international body of law, called the law of war, and that hostilities began with al-Qaida sometime after the terror attacks. Hawsawi, who was staying in the United Arab Emirates before 9/11, allegedly helped at least seven of the 19 hijackers either with travel arrangement or money transfers. Testimony in court showed that at least two U.S.-based hijackers wired him leftover cash advances before the 9/11.

Pohl's ruling concluded that the U.S. was at war before the attacks because Congress and two presidents have said so.

President George W. Bush created military commissions after the attacks to prosecute the perpetrators and Barack Obama reformed the system in collaboration with Congress. The Military Commissions Act of 2009 "contemplates prosecution for offenses occurring 'on, before or after Sept. 11, 2001,' ” Pohl pointed out. Moreover, he said, courts senior to the war court "have also acknowledged the existence of this conflict."

"The overall armed conflict against al-Qaida — a transnational terrorist organization operating primarily outside the United States —might itself be viewed as an anomaly under pre-Sept. 11, 2001 law of war standards," he wrote.

"However, the law of war is not static, and its precise contours may shift to recognize the changing realities of warfare. Military commissions by their nature are intended to have sufficient flexibility to address the needs presented by the armed conflict they address."

All of this smacks of ex post facto re-jiggering of the rules to insure you get the outcome you want. And the defendents lawyers now that if they are not tried before a real court, their clients are fucked.