Aside from the fact that adequate grounds exist for military jurisdiction based on the Pentagon portion of the attack - and the fact that the act KSM is most likely to be charged with conspiracy, which certainly occurred outside of the U.S. - the analysis is far more complex if one has a basic understanding of criminal procedure. The very high standard of proof required to convict in a criminal court, and the complexity of the rules of evidence - particularly when considering the difficulty of trying a conspiracy charge. Hell, as a law student, I spent untold hours just looking at hearsay and its numerous exceptions. Not to mention the issue of evidence extracted during and after water boarding sessions and other interrogation
I obviously haven't seen the prosecution's evidence in full, but if this were a more traditional criminal charge, I'd wager that they would have one hell of a tough row to hoe. Keep in mind that, if the law is applied as it should be, a jury may only consider evidence that has been admitted before the Court. If vital bits of evidence are excluded--a scenario that is certainly feasible--can the prosecutors successfully prove the elements of the crime KSM is charged with? If not, in a real trial, he would have to be let free.
Of course, this isn't going to be a real trial.
Assume that KSM is acquitted. There is obviously no chance he'll ever be released, nor could he be released onto U.S. territory at all, of course, under the Immigration and Naturalization Act. A real criminal trial would carry with it the vagaries and risks associated with any criminal trial, no matter how "air tight" a case is (e.g., O.J. Simpson), and the possibility of an acquittal and release.
I fear what we have here with the upcoming KSM trial is more of a show trial. The conviction, execution, and virtually pre-determined, or at least that is how Obama is treating it in statements to the press (as a lawyer and former law professor, he should know better, as he acknowledged with his subsequent ass covering).
Aside from some of the more obvious questions (Why a criminal trial for only this handful? Why are military tribunals "good enough" for the rest? Why has Obama shifted support from the military tribunals he once supported specifically for KSM to the civilian courts? How will classified evidence be handled? Will KSM truly be given full access to all the evidence against him, including names of informants?) are the more larger concerns. Why a show trial for this person? Why now? Will show trials become the norm for the particularly loathsome among us? For those it is more politically convenient for the president to try via show trial? Is this the direction we would like to go in?
If this were to be a real trial, it would be a demonstration of the Obama administration's willingness to take unacceptable risks on national security, particularly since a much friendlier venue is allowed under law and some of the trickier, thornier aspects of the law can be avoided. Instead, it may prove to be a perversion of the criminal justice system, which has rules that are much better established and protect every single American citizen. Why open the door to show trials?