Can the US fairly prosecute Khalid Sheikh Mohammed?

>>> so, adam , you were at -- we're going to have a procedural hearing tomorrow. it's not a hearing of guilt or innocence, it's a hearing about khalid sheikh mohammed . you were at -- what do these trials look like, as someone who sat there and watched one of these hearings?

>> well, it's very strange because you actually sit behind sort of a glass, soundproof wall. you have to look up at a monitor and it's delayed by like 30 seconds so that the judge can hit a sound button and block classified information supposedly from being disclosed. often what's classified is typically stuff that's public knowledge but officially secret from the government's perspective. so you're actually watching people talking and moving and doing things and then you see them doing the same things 30 seconds later on this monitor with sounding. it's a really surreal experience. but i think as far as guantanamo itself, the most interesting thing about it is that it's very much, i think, one former bush administration lawyer described obama 's policy on this as a kinder, gentler bush. you go to guantanamo and facilitywise it's a much more comfortable place for the detainees. they have a very expensive soccer field but still don't have any of the rights that they were supposed to have or that obama suggested that they would have when he was running for president.

>> josh.

>> well, so to adam 's point there was a very interesting op-ed in "the new york times" from jennifer daskle. she worked very hard --

>> she was part of the guantanamo bar, she went to the administration and now she says keep it open.

>> keep it open because of exactly what adam says. the conditions are arguably better than what they would experience in illinois or any of the prisons on the continental united states .

>> but this isn't about conditions.

>> that's completely 100% nuts. keep the people that are detained illegally in place because the conditions are much better now than they were eight years ago? that's crazy.

>> better than they are in the u.s.

>> this isn't about conditions. wait a minute.

>> finish your point.

>> my point being that i think we're missing the meta picture here which is that we now have a situation in which these military commissions are moving forward. our emphasis is focusing on military commissions and on detainee treatment , but that's really not -- that's not the issue. the issue here is that we have an opportunity to try people in federal courts that we are not looking at at all. regardless of what happens with khalid sheikh mohammed and the military commissions , chris, with respect i think the question is not how does that system work for the easiest case for the administration. in a democracy, the question is how does the legal process work for the hardest --

>> i want to talk about khalid shake mohammed. the reason, i'm not sure it works for the easiest case. khalid shake meikh mohammed, and i think we're being critical and rightfully so. fine, ksm. mastermind of 9/11, said so himself. i don't think there's a whole lot of question about that. pulled off a huge mass murder . there should be accountability and justice for that, all right? now, the guy was tortured, right? he was subject to war crimes . we are now going to have a war crimes tribunal, someone who was the victim of war crimes , who committed war crimes quite clearly. but then the question is eric holder wanted to try him in the u.s. and charles schumer got wobbly, everyone ran away from it, they tried and tried and tried. let's say you try him in the u.s. the first day there's going to be a procedural hearing saying you cannot admit the things that you got out of my client when he was being tortured which is the hearing happening tomorrow. so what should they be doing with him. if you bring him into a civilian court and they say you tortureded ksm, the law says you've got to let him free.

>> the law doesn't say that. it should in my view, if you torture somebody, they should be released.

>> even khalid sheikh mohammed .

>> he's not subject to this law. i'm saying what u.s. law should be if i were writing law. the point is it doesn't say that. the point is if someone is tortured, you can't use what you get under torture. they have a lot of things on ksm without having to use what they got during torture.

>> so having conversations for ten years --

>> and they have got this all on tape.

>> so the point is that khalid sheikh mohammed could be tried in a civilian court and a reasonable chance of conviction.

>> and the only reason why it doesn't happen is because of the politics of the situation. and that's, again, going back to the big problem. but even looking at military commissions , so you have this case where there was this ruling, let's put this back on the obama administration again. so there's the political piece with congress and there's george bush , but here's what the obama administration can and should do. they're in the position to decide whether they are going to appeal this court ruling about conspiracy, right, the nonwar crimes, crimes.

>> in which a court vacated a conviction.

>> the obama administration should not appeal that conviction -- that decision because what that would do is it would move that whole process forward. it would give them a political footing to say, look, either we are a rule of law presidency or we are not and we have to abide by this. let's shift these trials to civilian courts and take the political heat on these things. we'll still get immigration passed, we'll still get gun control passed, but the state of our democracy, the foundation of our democracy rests on these next few days.

>> i interviewed in january a famous detainee at guantanamo because of one of the most supreme court cases bears his name. when we come back, i want to play a little clip to remind people of the human stakes here. you talked about political problem, legal problem. there's a human problem. there are human beings who are rotting in a prison, even if it has nice facilities, with no access to their families, to their lives, and they have been there for in some cases 11 years and they haven't done anything. that's the key point. there are people who have not done anything and they are in there for 11 years. i want to talk about whether the obama administration really does have a plan to close it or are we going to have guantanamo forever right after this.