Primarily, the system Graham is designing is set up for handling the Obama administration’s so-called “Fifth Category” of detainees that a Justice Department task force recommended against charging and releasing. “What do you do with them? What type of system do you have to hold them indefinitely?” Bishop said. “What type of system do you establish where we can ensure that we’re looking back at their cases; that we are holding them; we still determine that they are enemy combatants; they’re too dangerous to release; but we also aren’t going to try them in either a military or a civilian court. So there has to be a system for that, and that’s why Senator Graham is looking for a legal framework.”

Bishop said that Graham was not considering holding any American citizen indefinitely without charge — something that Graham’s close allies, Sens. John McCain (R-Ariz.) and Joe Lieberman (I-Conn.), included in their recent detention proposal. “You can’t hold an American citizen indefinitely in that kind of status,” Bishop said.

Graham is “talking with the White House” about the idea, Bishop said. But last year, the administration opted not to seek a new statute from Congress authorizing indefinite detention, as the Justice Department would “would rely on authority already provided” by the legislature for holding some terror suspects without charge.

There’s much that remains undefined about Graham’s proposal, including how much oversight judges would exercise over detainees held without charge. But Bishop said the system Graham is trying to set up wouldn’t just apply to the estimated 48 Guantanamo detainees the task force considers too dangerous to release but too difficult to prosecute in any forum. “There may be some people whom we capture in the future whom we can’t release,” Bishop said, “and that’s what Senator Graham is trying to establish.” Any proposal remains “weeks away” from introduction, he added, as “the White House has said they’re weeks away from any determination, even on the KSM situation.”

Update: I should clarify that the DOJ left itself wiggle room last year. According to The New York Times, while the administration opposed new legislation for the indefinite detention without charge of those 48-odd Guantanamo detainees, it hasn’t ruled out seeking such legislation for future detainees whom it may seek to hold indefinitely without charge. I’m trying to get some clarity here from the Justice Department.

The organization’s previous report, issued last year, was written by two former federal prosecutors who examined more than 120 major international terrorism cases and their outcomes. In the new report, the same former prosecutors follow up on their previous study by analyzing the process and outcomes of 119 cases involving 289 defendants. They discovered that the federal government has a high success rate in federal court on terrorism cases — winning convictions in more than 91 percent of cases. Those convicted and serving prison time, meanwhile, haven’t harmed the surrounding communities, notwithstanding the warnings of lawmakers who’ve opposed transferring terror suspects to the United States — even to maximum-security prisons.

The remaining question, though, is one Glenn Greenwald asked on a conference call with the report’s authors and Human Rights First Executive Director Elissa Massimino today: whether these cases are similar enough to the ones the Obama administration is saying it can’t try in federal court — those people against whom there isn’t admissible evidence, yet the administration says are “too dangerous” to release. If not, does the report have any bearing on the question of what to do with them?

Given that the administration hasn’t yet named any of those cases, but speculates that they exist, it’s impossible to know for sure. But as James Benjamin, one of the report’s authors, explained, the cases he examined represent “extraordinarily serious acts of violence against the United States carried out all over the world,” including embassy bombings, the previous world trade center bombing, Zacarias Moussaoui (convicted in connection with the 9/11 attacks) and Richard Reid (the “shoe bomber”). Those cases presented “some very difficult practical and legal issues” that the courts have been able to handle, he said.

Still, Benjamin qualified that finding: “That’s not to say that the justice system can handle every case,” he said, and praised the Obama administration for undertaking a case-by-case analysis.

So where does that leave us? President Obama and his Detention Policy Task Force have acknowledged that the federal courts can handle most terrorism cases. They’ve also said that violations of the laws of war should instead — or in addition — be handled by military commissions. That’s not specifically undermined by the Human Rights First report’s finding.

Still, what about that supposed third category? By saying that not every alleged terrorist can be tried in federal court, Human Rights First is admitting that this category of people may exist, as the Obama administration claims. But neither the human rights lawyers nor the government has so far been able to come up with a reasonable solution for what to do about them.

Will the administration be more swayed by an author of books about fighting terrorism than by its own deputy attorney general at the Office of Legal Counsel, Marty Lederman? The choice is stark, and if NPR’s Ari Shapiro is correct that Wittes is planning to reveal proposed legislation on the matter today, and that he has the ear of the Obama administration, then it may ultimately come down to whose view the administration credits more.

Wittes has no formal legal training and has proposed a potentially unconstitutional system of indefinite detention of terror suspects without trial; Lederman is an esteemed constitutional law professor at Georgetown University with eight years of prior experience advising the executive branch from the Justice Department — and he has previously expressed serious concerns about preventive detention.

As Spencer pointed out, before his appointment to the Office of Legal Counsel in the Obama administration, Lederman, in an online colloquy with Wittes, specifically denounced the idea of preventive detention based on the president’s determination of who is dangerous.

“’Dangerousness,’ as such — particularly dangerousness as evidenced primarily by one’s ‘deeply held beliefs’ — is not a constitutionally valid ground, standing alone, to indefinitely incarcerate persons without the protections of a criminal trial,” he wrote in Opinio Juris. “Indeed, even if the dangerousness is demonstrated by past criminal conduct, that is not a permissible ground for noncriminal detention.” He continued that the Supreme Court has repeatedly held that deterrence of dangerous people “is a function ‘properly … of criminal law, not civil commitment.’”

Wittes may have a very “pragmatic approach to fighting terrorism,” as NPR describes it. (He’s also in the past proposed a system of “national security courts” that would suspend some of the usual criminal justice procedures — which sounds a lot like the new Obama military commissions proposal.) But it’s worth recalling that we’re in this situation to begin with because the Bush administration, dominated by non-lawyers, had insufficient respect for constitutional parameters.

This situation may be partly due to the lack of leadership in the OLC: Republicans have stalled the confirmation of Dawn Johnsen, President Obama’s nominee to head the office, for months now. That may be giving outsiders more say in the administration’s plans than they would ordinarily have.

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It’s also unclear whether the military judge in the case is empowered under the Military Commissions Act to accept guilty pleas, and to impose the death penalty, which the government is seeking, or whether a military jury must make those decisions.

Organizations such as the ACLU and Human Rights Watch have been saying the military commissions proceedings are a sham and that the defendants should all be tried in a federal court instead. President-elect Barack Obama has also indicated that he intends to close the Guantanamo Bay prison, where the five men are being held, and to shut down the military commission system. Today’s guilty pleas suggest that at least some of the defendants want nothing to do with an American system of justice, however — whether by military commission or in federal court.

“We don’t want to waste our time with motions,” Mohammed said, according to the Times. “All of you are paid by the U.S. government. I’m not trusting any American.”

The five men sent their statement to the judge just as the court was scheduled to hear a series of defense motions challenging the military charges against the defendants.

Khalid Shaikh Mohammed has said repeatedly that he wants to die and to be martyred. He’s also confessed to more than 35 terrorist attacks around the world. He and two of his co-defendants have been deemed competent to represent themselves, although they all have stand-by defense counsel to assist them.

Some advocates have expressed concern that KSM may be pressuring the other defendants to plead guilty along with him, and to all martyr themselves together.

Joanne Mariner, Terrorism and Counterterrorism program director at Human Rights Watch, noted that KSM’s adamant position in this case underscores why a credible justice system for suspected terrorists is important.

“Whether Khalid Sheikh Mohammed wants to be a martyr or not, the US justice system should not allow him to be,” she told me today. “It would degrade the justice system. We have an interest in maintaining the credibility of the justice system.”

According to William Glaberson of the New York Times, Judge Steven Henley, an Army colonel, plans to probe the vountariness of the pleas and make factual findings before he accepts them.

“We think it’s important for the judge not to rush to accept this,” said Mariner. “In our view there should be a psychiatric examination of the defendants. Given the years in CIA custody and the abuses they endured, there’s a strong possibility of post-traumatic stress. Even if the judge accepts the guilty plea, he should have hearings and time to decide on the penalty. Whether or not the defendants want that.”

Although the judge has indicated that he will hold hearings, it’s not clear how far he’ll get in this case. When Barack Obama assumes control of the Justice and Defense Departments in January, he is expected to disband the military commissions. What he will replace them with, however, remains a subject of much speculation and debate.

In fact, the Hamdan story suggests quite the opposite: thanks to just such a specially-created justice system, Hamdan, who the Bush administration painted as a dangerous terrorist plotting with bin Laden and arming warriors to attack America, was sent home last week to serve just a few months’ more in a prison in Yemen; meanwhile, more than 225 other detainees, some held almost 7 years without charges or trial, remain stuck indefinitely at Guantanamo Bay.

What kind of justice is that?

If anything, Hamdan’s case highlights the absurdity of creating a new system of military or “hybrid” justice to try people for crimes that could be prosecuted more easily, at less expense and with more legitimacy in our existing federal criminal justice system. (I’ve written previously about the debate over creating new courts for TWI.)

In his piece in the Times, Mahler, relying on a few neocons and former Bush administration officials, suggests that prosecuting suspected terrorists in the federal criminal justice system where we’ve always tried them would somehow mean the United States must relinquish its right to use military power to defend itself against enemies and imminent attacks.

In fact, it would mean no such thing.

Mahler writes that “ceding the military paradigm altogether would severely limit [Obama's] ability to fight terrorism. On a practical level, it would prevent him from operating in a zone like the tribal areas of Pakistan, where American law does not reach.”

But where the US tries suspected terrorists — whether in military commissions, federal courts or newly-created “hybrids” — has nothing to do with whether it maintains the right to shoot missiles into al Qaeda training grounds. As Mahler himself notes, President Clinton launched cruise missiles against terrorist camps in Afghanistan after al Qaeda attacked two American embassies in Africa in 1998. Mahler neglects to mention that the terrorists who carried out those bombings were subsequently tried, fairly and expeditiously, in a US federal court. Four terrorists were sentenced to life in prison without parole, plus $33 million in restitution to the bombing’s victims and the US government.

That one trial alone, completed just three years after the embassy bombings, embodies more success than the Bush administration has had in the last seven years of trying to bring to justice the perpetrators of its so-called “war on terror.” As I describe in this article, only three people have been tried by the Bush military commissions at Guantanamo Bay so far; two were sentenced to seven years or less in prison. The only terrorist sentenced to life in prison boycotted his trial and offered no defense at all.

In conflating the president’s right to use the US military with the question of where we should prosecute suspected terrorists, Mahler is perpetuating a misleading and dangerous idea that fighting terrorism requires all sorts of exceptions to the usual rules set out in the US Constitution and international law. But it’s precisely the attempt to carve out exceptions and new rules for supposedly special circumstances that’s led to the Bush administration’s dramatic failures in the terror war so far. No only have none of the perpetrators of the 9-11 attacks been brought to justice, but the evidence against many of them may be so tainted by torture and other abusive interrogation tactics that much of it may be completely unreliable and therefore unusable — not only in federal court, but in any military or hybrid justice system that could be created. (Even the Bush military commissions have had to suppress evidence found to have been extracted by torture.)

What’s more, any new military or “hybrid” system that seeks to bend the rules of evidence or rights of defendants will surely be challenged not only in the US court system, but in the global court of public opinion, as both our allies and our enemies see the United States compromising the very principles of liberty and justice it claims to be fighting for. That’s not going to help us any in the war against terrorism.

Mahler is right that the new administration will need to clarify the meaning of the “war on terror” and make clear who we’re at war with and what it’s entitled to do to protect the United States against that enemy. But it will have a lot of explaining to do if it also decides that our existing federal and military courts, which have proven quite capable until now, are not up to the task of bringing suspected terrorists to justice.

Holy Land former chairman Ghassan Elashi and Shukri Abu-Baker, the group’s chief executive, were convicted of a combined 69 counts, including supporting a specially designated terrorist, money laundering and tax fraud.

Mufid Abdulqader and Abdulrahman Odeh were convicted of three counts of conspiracy, and Mohammed El-Mezain was convicted of one count of conspiracy to support a terrorist organization. Holy Land itself, accused of giving more than $12 million to support Hamas, was convicted of all 32 counts charged.

Critics of using the federal courts to try suspected terrorists often claim that military commissions or special national security courts are needed to handle sensitive classified evidence or testimony of informants who cannot be identified.

In the Holy Land case, however, the federal court had no problem allowing the federal prosecutors to introduce and rely upon the testimony of an anonymous Israeli witness who testified as an expert on funding for terrorism. Although critics have denounced that tactic, the defendants’ lawyers were allowed to cross-examine the witness and were given the basis of his credentials as an expert, apparently solving the potential Sixth Amendment Confrontation Clause problems.

“Witness anonymity to some extent raises concerns, but the court has to weigh the national security interest against the defendant’s right,” explains Peter Margulies, a law professor at Roger Williams University and expert on national security law.

Although I didn’t watch the Holy Land trial and won’t venture to comment on its fairness, it does counter the argument made by people like Benjamin Wittes, Jack Goldsmith and Neal Katyal, which I’ve reported on before, in favor of creating special national security courts to handle classified evidence and testimony from important witnesses who need to remain anonymous for national security purposes.

As Human Rights First demonstrated in a report released in May, federal court trials of suspected terrorists have actually been far more successful than any military commissions have shown themselves to be.

Since September 2001, about 150 suspected terrorists have been convicted in US federal courts. By contrast, only three have been convicted by the Bush administration’s military commissions – one in a plea deal, another in a trial boycotted by the defendant, and the third –Salim Hamdan, Osama bin Laden’s driver, originally accused of being one of the masterminds of the 9/11 attacks — resulting in a conviction of just a few months more than time served. I heard today that he’s already on a plane back to his home country of Yemen.

A Guantanamo detainee is escorted to his cell. (Wikimedia Commons)

When word leaked last week that advisers to President-elect Barack Obama were suggesting he create special national-security courts to try high-level Guantanamo detainees, a firestorm erupted among civil-rights advocates and lawyers who’ve represented prisoners there.

By the next day, the Obama camp had issued a statement backing away from the idea. Though Obama agreed that the Guantanamo Bay prison facility should be closed, there was “absolutely no truth to reports that a decision has been made about how and where to try the detainees,” said Denis McDonough, a senior Obama foreign-policy adviser, “and there is no process in place to make that decision until [Obama’s] national security and legal teams are assembled.”

Illustration by: Matt Mahurin

These days, there’s little question that the Guantanamo prison has become such a global symbol of American abuse that it must be closed. On the campaign trail, Obama specifically pledged to “close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions.”

But closing Guantanamo and ending the military commissions is the easy part. It’s what to do with the people imprisoned there that’s already presenting a thorny political problem for the new administration.

In voting for an amendment to the Military Commissions Act in 2006, Obama said it is “military courts, and not federal judges, who should make decisions on these detainees.”

Obama has never specified what he means by military courts, or how they would function differently than regular civilian courts. But law professors who’ve argued for military commissions or specialized courts say they would reduce the burden on the civilian court system and provide specialized judges knowledgeable about terrorism and handling classified information.

Equally important, some argue, is that it would allow for the prosecution of alleged terrorists for things that wouldn’t qualify as federal crimes under civilian criminal law, like group membership.

These courts would allow introduction of sensitive evidence against detainees provided by informants and other intelligence sources that the government wouldn’t want presented in an open civilian court, and might, depending on the particular rules, allow introduction of coerced evidence, or other evidence that “might not meet every jot and tittle of American criminal law,” as law professors Neal Katyal and Jack Goldsmith wrote in a New York Times op-ed on the subject last year.

Lawyers and organizations representing Guantanamo detainees, however, including the American Civil Liberties Union, the Center for Constitutional Rights, Human Rights Watch and Human Rights First have called for trying suspected terrorists in the civilian federal court system, and oppose creating specialized courts. So have many law professors.

“I’m very much in favor of using the civilian system—regular federal courts based on criminal charges,” said George Fletcher, an expert in international criminal law at Columbia Law School. It would be dangerous in my view to create a whole new court.”

“From everything I can gather, there really is no need for it,” said American University Law Professor Herman Schwartz, talking about the national-security court proposal. “Classified information is not a serious problem,” he said, noting that the Classified Information Protection Act allows district court judges to delete or summarize classified information when necessary to protect state secrets. “They handle problems of large conspiracies, of evidence overseas. Most of the problems that might be raised have been handled quite well by federal court judges.”

Law professors from Harvard and Georgetown, however, who apparently have the ear of the Obama administration, have supported creating a special national-security court system.

Laurence Tribe, a Harvard law professor who is an Obama adviser, wrote in a 2002 Yale Law Journal article, with Neal Katyal, a Georgetown law professor, that specially created courts or commissions could be a wise idea — as long as they’re authorized by Congress and comport with the U.S. Constitution.

As Tribe told The Associated Press last week, in the story that’s ramped up the tension around this issue: “It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts.”

He and another Harvard law professor and close Obama advisor, Cass Sunstein, testified in December 2001 to the Senate Judiciary Committee that the creation of military commissions to try suspected terrorists of war crimes is perfectly legal.

Katyal, who represented Salim Hamdan, Osama Bin Laden’s driver, in a habeas corpus petition and before the U.S. military commission, and is reportedly offering advice to the Obama team, has more explicitly advocated for a national-security court system that would allow “preventive detention” — among the most controversial aspects of Bush administration detainee policy.

In a New York Times op-ed article last year, Katyal and Harvard Law Professor Jack Goldsmith advocated “a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.”

Given the current sensitivity of the issue, Katyal, Tribe, Sunstein and Goldsmith all declined to be interviewed for this article.

The debate isn’t about all the approximately 250 detainees left at Guantanamo. Legal experts generally agree that many should be released, after the new administration internally assesses the evidence against them.

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

In fact, though Defense. Sec. Donald Rumsfeld in 2002 called the Gitmo prisoners “the worst of the worst,” the Bush administration itself let about 500 of the 750 detained there go home, usually based on diplomatic arrangements with their home countries. Another 60 or so have been given clearance to leave, though the administration hasn’t figured out where to send them. Many could be in danger if they return to their home countries, and neither the U.S. nor other countries have offered to accept them.

The debate really centers around what to do with the few dozen people being held at Guantanamo that the Defense Dept. or CIA still believe are truly dangerous. This includes people like Khalid Sheikh Muhammad, an al Qaeda member who the 9/11 commission named “the principal architect of the 9/11 attacks.” He’s been charged with murder and war crimes. (Though the Bush administration has said it wants to try about 80 people before military commissions, so far only about 20 have been charged.)

No one wants to let him go free based on procedural technicalities, but it’s not clear at this point whether the evidence against him has been tainted by torture or involves sensitive classified information the government wouldn’t want him to see.

Obama has already pledged to shut down the existing military commissions. That leaves the civilian federal court system, where major crimes like terrorism, organized crime, drug offenses and other federal crimes are ordinarily tried.

Prisoners of war accused of war crimes, meanwhile, could be tried in the military justice system, though determining who qualifies as a prisoner of war in a “war on terror” will be problematic, given that Al Qaeda isn’t a country, and the “war on terror” isn’t really a war.

“Wars have beginnings, middles and ends,” said Schwartz, of American University. “They have battles. They have surrenders. This isn’t that. The two wars we’re in have very little to do with Al Qaeda.”

Equally dicey is that, under the laws of war, prisoners of war may be detained without charge until the end of hostilities, yet the “war on terror,” as defined by the Bush administration, has no apparent end.

Proponents of national-security courts say they could function as a hybrid between civilian courts and the military commissions already created, providing for temporary preventive detention, and exceptions to rules that normally grant the accused the right to see all the evidence against him, or to exclude evidence based on hearsay or obtained by coercion or torture.

The rules of criminal procedure that apply in federal district courts “go further than the Constitution requires,” said Benjamin Wittes, a fellow at the Brookings Institution and author of “Law and the Long War: The Future of Justice in the Age of Terror.” “You could alleviate some of the problems of these prosecutions and facilitate more trials if you streamline the rules.”

As the Yale law professor Ruth Wedgwood wrote in a 2001 op-ed in The Wall Street Journal supporting the Bush-created military commissions: “U.S. Marines may have to burrow down into an Afghan cave to smoke out the leadership of Al Qaeda. It would be ludicrous to ask that they pause in the dark to pull an Afghan-language Miranda card from their kit bag. This is war, not a criminal case.”

But is it? Is it different than the war on drugs, for example? Are these cases really different than previous terrorism prosecutions, like those arising out of the first attack on the World Trade Center in 1993, or the East African embassy bombings in 1998? And what are the consequences of creating special courts to get around the rules of evidence?

“National security courts are unnecessary and dangerous,” said Sharon Bradford Franklin, senior counsel at The Constitution Project. “The use of coerced evidence violates our constitutional safeguards provided by our traditional federal courts. Our courts have demonstrated they can handle these prosecutions.”

American University’s Schwartz agrees. “You shouldn’t be able to introduce evidence if it’s tainted by torture,” he said, “How reliable can it be? Khalid Sheik Mohammed, according that what he’s said, seems to have planned everything that’s ever happened going back to 1916. There’s something like 37 terrorist acts he’s supposedly confessed to. The thing about torture is you never know, because people will say anything.”

Mohammed has reportedly confessed to everything from the 9-11 attacks to personally beheading the Wall Street Journal reporter Daniel Pearl to the attempted shoe bombing by Richard Reid to an attempt to assassinate Pope John Paul II.

Of course, excluding coerced confessions means some guilty people could be let go.

“A lot of the evidence produced in the military commissions was taken through torture,” said Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo. “It might mean that men have to be let go that maybe we wouldn’t want to let go. But that’s the way the judicial system is structured.”

That could create real risks, though. What if some of those people are returned home, then join the ranks of those fighting against U.S. forces? The Pentagon claims that as many as three dozen former Guantanamo prisoners have taken up arms against Americans since their repatriation, although human rights groups say it’s closer to a handful, many of whom were radicalized by their experiences at Guantanamo.

Ultimately, it may be a more practical consideration that will drive the decision.

“I think Obama intends to act really quickly, to get prosecutions that result in the convictions of high-profile people,” said Scott Horton, an international lawyer and visiting professor at Hofstra Law School. “If he were to go for a national-security court, it would have to be done by legislation. That’s at least a year to set up a new commission.”

What’s more, any new commission would likely be attacked in the courts. “No matter what you do in a military commission there’s going to be a fight,” said Fletcher, of Columbia Law School, who assisted the Hamdan defense team during the military commission trial. “A clever lawyer can always defeat the government in a military commission case” by raising procedural objections, said Fletcher.

“My concern is that any new national-security court that might be devised is likely to contain the same sorts of unworkable procedures and problems that we see in the MCA,” said Joe McMillan, a Seattle lawyer who also worked on the Hamdan defense. “It’s just unnecessary. The civilian courts of the United States have dealt with terrorism cases and have at this point a better record of conviction than the military commissions.”

Indeed, the military commissions at Guantanamo Bay have only convicted 3 people so far (including one plea bargain and another in a trial boycotted by the accused), whereas the Justice Dept. has convicted 145 defendants in terrorism cases between Sept. 11, 2001 and the end of last year.

“We want the right to introduce evidence that a long tradition in our legal system has recognized is unreliable,” said McMillan, referring to evidence obtained under torture. “So we want to build a new court system to do that. I think we should resist that impulse.”

On Tuesday, senior Obama foreign policy adviser Denis McDonough said that while Obama agreed the Guantanamo prison should be closed, there was “absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until [Obama’s] national security and legal teams are assembled.”

Still, the apparent leak that Obama was even considering a special court system was a step into a legal policy minefield.

Advocates on all sides have staked out strong positions on the matter: the ACLU and a bipartisan coalition created by the Constitution Project, along with some lawyers who have represented detainees at Guantanamo Bay, make a strong case that specially-created national-security courts are unnecessary and likely unconstitutional. And Human Rights First has issued a study demonstrating that the federal court system works just fine for prosecuting terrorists.

Meanwhile, the neo-conservative Foundation for Defense of Democracies, a group started after 9/11 that includes former FBI Director Louis J. Freeh and former House Speaker Newt Gingrich, supports creating special courts.

So does Harvard Law Professor Jack Goldsmith, who served briefly as director of the Justice Dept.’s Office of Legal Counsel before resigning and writing his book, “The Terror Presidency,” which includes a scathing critique of the Bush administration’s legal analysis and policies on the treatment of detainees.

But it’s not just conservatives that support a special court system to try suspected terrorists. Moderate liberals like Georgetown University law professor Neal Katyal, who represented Osama bin Laden’s driver, Salim Hamdan, before the U.S. Supreme Court, and later at his military commission trial, has written in favor of creating special courts to try suspected terrorists, and even their “preventive detention.”

Harvard Law Professor and Obama adviser Laurence Tribe has written (with Katyal) that the use of military tribunals to try suspected terrorists could be constitutional and even wise, so long as they’re authorized by Congress and comport with constitutional commands.

How a President Obama is going to weigh all these different viewpoints remains to be seen. As I pointed out yesterday, the challenge Obama faces is made far more difficult because of the harsh interrogation methods used against suspected terrorists, or “enemy combatants,” as the Bush administration calls them. The problem is that evidence obtained by coercion isn’t admissible in regular U.S. courts; but letting potential terrorists go, possibly to strike again, isn’t a politically acceptable option for a new president.

Then again, a special court created to accommodate the torture problem and even permit preventive detention of suspected warriors would set a troubling precedent that we’d be stuck with for many years to come.