Brookings’ Benjamin Wittes, no fan of a civilian trial for KSM, tells Gerstein that the Obama team’s punting is “disgraceful and they should be embarrassed by it.” For an administration attempting to place adherence to the rule of law at the centerpiece of a global order, it’s especially problematic.

But it probably has one political-legislative impact. One thing you haven’t read about over the past couple of months is an effort by Sen. Lindsey Graham (R-S.C.) to create a new legislative architecture for reviewable indefinite detention of terrorism suspects. Graham wants that more than he wants the KSM trial held in a military commission or the closure of Guantanamo Bay, which he has held out as the chit for the administration if it tries KSM in a military venue. And Attorney General Eric Holder signaled his assent to Graham’s proposal in testimony earlier this spring. But the inertia of the White House most likely drains the impetus for any such new system during the current legislative year.

On the commissions, however, Davis is less judicious about the hybrid law/war system that they represent:

Second, if terrorism falls within the ambit of warfare rather than ordinary crime, then the Geneva Conventions are the basis of the rights the detainees enjoy, and fairly administered military commissions could meet or exceed the requirements of Common Article 3 of the Geneva Conventions. Decide whether we’re at war with al Qaeda and its affiliates or if their activities are manifestations of a crime spree, and pick the corresponding criminal forum. Fourteen high value detainees got off the airplane at Gitmo in September 2006. Parsing an explanation for why Ghailani gets full constitutional rights in a trial in federal court while his fellow passenger Nashiri gets something less in a military commission does not enhance our standing in the eyes of the world.

And that doesn’t even touch on some of the confusion closer to home. Among the reasons Sen. Lindsey Graham (R-S.C.) wants Khalid Shaikh Mohammed tried by a military commission and not a civilian court is because it’s hard to understand why the architect of 9/11 wouldn’t be placed before a venue designed for trying war crimes but someone charged with a lesser offense would be tried there. Two senior administration officials, David Kris of the Justice Department and Jeh Johnson of the Defense Department, didn’t articulate a clear rationale for determining who ought to be tried in which venue during the highest-profile congressional hearing on the question thus far.

Davis also highlights the looming question of judicial oversight for any post-Guantanamo system of indefinite detention without trial, something Graham and Attorney General Eric Holder recently agreed the administration and Congress ought to design. Check out the piece.

I know you all have questions about the prosecution of those charged with plotting the 9/11 attacks. No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried.

As I’ve said from the outset, this is very a close call. It should be clear to everyone by now that there are many legal, national security and practical factors to be considered here. As a consequence, there are many perspectives on what the most appropriate and effective forum is. In making this decision, I can assure you that this Administration has only one paramount goal: to ensure that justice is done in this case. In the pursuit of justice, we will enforce the law and protect the American people.

“This administration will use every tool available to fight terrorism,” he continued, repeating “every tool available” for emphasis. “That includes both civilian courts and military commissions. “

Adam Serwer of the American Prospect is at Guantanamo Bay to observe a commission, and he reports on a briefing he received about their procedure:

But in a conference call with reporters a few minutes ago, the chief prosecutor for the Guantanamo Bay Military Commissions, Cpt. John F. Murphy, said that there was little difference “as a practical matter” between dealing with classified information under CIPA and the new process outlined by the revised military commissions law.

“The new changes to our 505 bring it more into conformity with CIPA — it is closer to the CIPA process in federal court,” Captain Murphy said. “I would need to lay the two statues side-by-side to point out the differences.”

“As a practical matter, there’s very little difference between the two,” he said.

The only practical difference Adam can ascertain concerns a slight delay on the closed-circuit TV feed from the trials into the observation room. On such differences hinge, substantively, the political opposition to trying a terrorist in a venue with nearly 400 terrorism-related convictions as opposed to a venue with three.

Attorney General Eric Holder will next get a chance to press his case publicly on Wednesday, when he testifies to the Senate Judiciary Committee, and then on Thursday, when he speaks to the Constitution Project’s annual dinner.

They also allow Holder an additional opportunity to entrench the Justice Department’s role in counterterrorism ahead of a potential presidential decision to abandon a criminal trial for Khalid Shaikh Mohammed and move the 9/11 architect back into the military commissions system for trial. Holder:

“The proliferation of both terrorism and traditional criminal acts across national borders makes international cooperation essential to bringing to justice those who threaten our safety and security,” said Attorney General Holder. “Algeria is an important partner in the fight against terrorism and transnational crime. This treaty will help us ensure that terrorists and other criminals are not able to avoid justice by simply hiding evidence beyond our borders.”

Accordingly, Holder’s address will be a weather vane for the internal struggle over the trial, which is shaping up to be the defining feature of his tenure atop the Justice Department. It’ll be hard to avoid the subject of the KSM trial in front of an audience of hardcore civil libertarians. If he does, he runs the risk of dispiriting the crowd. (Which would be too bad for the Constitution Project, since the dinner is a fundraiser.) Whatever Holder says — or doesn’t say — will be closely parsed, scrutinized and examined for clues to the future of KSM and the legal implications of the Obama administration’s ultimate decision as to his fate. I’m not above saying I’ll be an active participant in the analysis (or over-analysis).

In filings provided to the congressional intelligence and judiciary committees — and now to the press — the Department itemized all the people it’s successfully prosecuted since 9/11. It divides them into two categories: the first is for ”violations of federal statutes that are directly related to international terrorism and that are utilized regularly in international terrorism matters” and the second is for those convicted of a terror-supporting offense, like “fraud, immigration, firearms, drugs, false statements, perjury, and obstruction of justice, as well as general conspiracy charges.” All told, that’s 150 convictions in the first category, and 240 in the second, for a grand total of 390 people convicted on terror-related charges from September 11, 2001 to March 18, 2010.

And there’s more, according to the Justice Department’s filing, since its total “does not include defendants whose convictions remain under seal, nor does it include defendants who have been charged with a terrorism or terrorism-related offense but have not been convicted either at trial or by guilty plea.”

But the military commissions have convicted three people since 9/11, so that’s something.

Greg Sargent scans this all in so I don’t have to. Looks like the Justice Department is trying to fight off any attempt to move Khalid Shaikh Mohammed’s prosecution into a military commission as part of a White House deal with Sen. Lindsey Graham (R-S.C.).

Because before, we all figured Americans taken captive by al-Qaeda or its affiliates would be shown tender mercy.