With a declaration of war, I don't see why trying KSM et al in a military tribunal would be illegal or wrong.
Regardless, this issue is not that relevant in the sense that Rand's opinion (one way or the other) has no practical significance. There's only political implications involved. Even though I support the federal trial of KSM, I'd be disappointed if Rand sided with that.
The point is to WIN so we can FISCALLY take control of the country. It's not to get every nuanced and complicated issue right. The public doesn't understand legal arguments for this issue -- it's far too convoluted and if Rand said the opposite it would play like he was the defense attorney for the terrorists.
Rand has a REAL chance to win, let's focus on that!