CNN reports nothing too surprising about the verdict against the only jihadi to survive the terrorist attack on Mumbai. A judge found Mohammed Ajmal Kasab guilty on most of the counts in a verdict that ran for over 1500 pages, including one telling charge of “waging war against India.” In what may have been more of a surprise, he acquitted two Indian nationals on charges of providing Kasab and the other nine terrorists of support. Sentencing begins tomorrow, but there could be a snag on any death sentence:

The snag? According to the Times of London, India no longer has any trained executioners. The last one retired a few years ago. I doubt that will keep the court from imposing execution, but it may take a while to train someone, although I’d bet they will have no shortage of volunteers.

Expect opponents of Guantanamo Bay’s detention center and military commissions to argue that since India can successfully try terrorists in criminal court, Americans shouldn’t be afraid to do so, either. If they do, they will overlook a couple of key differences. First, most of us would agree that defendants facing charges for crimes committed in the US and arrested by law enforcement should get criminal trials — but that’s not what we face with Khalid Sheikh Mohammed and his cohorts in Gitmo. These terrorists committed their acts outside of US criminal jurisdiction and were captured by military and intelligence agencies while prosecuting a war. The issue at hand isn’t so much whether we’d get guilty verdicts but how much of our military and intelligence operations we’d have to expose in open court.

If the police find the Times Square bomber and arrest him, he (or she) should get a trial in criminal court, either federal or state. If our intel agencies capture people abroad who planned and coordinated the attempted attack, they should get a military tribunal, as Congress has repeatedly authorized. That’s the difference, and it has everything to do with “waging war” against the US and how we best defend ourselves against it to prevent attacks rather than prosecute people afterward.