Mark Harrison assumes that jurisdiction is crystal clear (US military law vs. Afghan criminal law), but I am not entirely sure it is.

If it turns out it is, then scratch this answer. But if there is even a smidgen of doubt about jurisdiction, that's all the room needed to turn this into a political circus.

The murkiness is fertile ground for very interesting dynamics. There are three separate issues here.

1. The first is the concern over whether Afghan criminal law is currently even capable of following due process well enough to make for a fair trial. This is always a relative question: the sophistication of the court doesn't have to be of the highest quality possible. It merely has to be good enough to be trusted for the specific case. In this case, I'd say that even a rudimentary court is likely capable of following reasonable due process.
2. The second is the issue of the legitimacy of the legal system in the eyes of the citizens of the country of the accused. Would a perfect Sharia court that follows due Sharia process perfectly be accepted by Americans? Would the judgment of a system that allows the death penalty be accepted by people whose morals reflect one that doesn't? Here, I'd again side with the Afghans. The victims were Afghan, their morality applies, so long as it is within a broad spectrum of accepted legal models.
3. The third is the politically sensitive issue of race tangled with international relations: there is always a subtext in such cases of a non-white country trying a citizen of a majority-white country. The situation is further muddied by whether the citizen in question is white or non-white.

Nobody will ever admit to the third issue being relevant, so all concerns will actually be phrased in terms of the first two. The unacknowledged truth is simple: letting Afghanistan try the accused earns America international brownie points, but costs the American government domestic political points from people to whom the race issue matters, even if they won't admit it.

It is actually not easy to determine who is influenced by the third issue. I wouldn't jump to the conclusion that it would be a certain kind of Republican.

So it comes down to whether the Obama administration currently needs more international brownie points or domestic political points.

An interesting related comparison case is currently in progress in India. Some Italian marines aboard an Italian ship killed some fishermen off the Indian coast, believing them to be pirates. They are currently in custody in India, and there is a rather tense diplomatic situation. This is a much more subtle case of course (probably manslaughter rather than first-degree murder, and in a country with a functioning legal system).

http://abcnews.go.com/Internatio...