Most public attention now will focus on whether Mr. Holder made the right choice [to hold Khalid Sheikh Mohammed's trial in New York federal court for the 9/11 attacks]. But that isn't the only question people concerned with how our government works should be asking.

The other question is what if Mr. Holder has guessed wrong? What if challenges to the way evidence was obtained result in exclusion of enough material that KSM is acquitted? What if discovery rules for federal criminal trials again result in disclosure of sensitive information - ending up in the hands of our enemies - on how we gather information and who provides it? What if that facilitates another attack with more lives lost?

Would there then be exposure for Holder and those who advised him? Should the public have access to the memos now so that we can judge for ourselves if the advice was sound? Should we be thinking about possible legal sanctions, maybe even prosecution, if we decide the advice was wrong, that it didn't rightly account for the risks to our safety and our lives, that it didn't value our security highly enough, or didn't ultimately fulfill the legal obligations of those in high office?
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If history is a guide, however, there will be plenty of bad fallout from this choice. The ill fit between the criminal process and the fight against international terrorism will reverberate in a series of decisions down the road respecting the conflict between effective antiterrorist measures and steps necessary to preserve litigation options. We don't want soldiers thinking about reading enemy combatants their rights, giving them Miranda warnings, making sure they have access to lawyers. We don't want our intelligence community worrying that Brady rules for disclosing evidence will compromise their effectiveness by revealing critical information on their methods and sources.