The Road From Gitmo

A small group of national security buffs is seeking to fill the vacuum. They come from both ends of the ideological spectrum and disagree avidly on many of the details. But they are pushing plans they believe will help balance civil liberties and security, and pave the way toward a post-Gitmo system of handling suspects in the war on terror. Among the ideas being floated:

THE STRANGE BEDFELLOWS COURT:Neal Katyal is a former legal adviser to the Clinton administration, served as co-counsel to Al Gore in Bush v. Gore and was lead counsel in Hamdan v. Rumsfeld, a Supreme Court case that found that the Gitmo detention system violated the U.S. Military Code and the Geneva Conventions. Jack Goldsmith is a conservative who headed up the Office of Legal Counsel in the Bush Justice Department and resigned after concluding, as he wrote in his book "The Terror Presidency," that "some of our most important counterterrorism policies rested on severely damaged legal foundations." The two have teamed up to propose a national security court that would operate independently of the civilian judicial system, but would be staffed by federal judges who could specialize in the subject matter and hear arguments from a pool of lawyers armed with security clearances and steeped in counterterrorism laws. First unveiled in a joint 2007 New York Times op-ed, the plan argues for treating citizens and non-citizens identically. But detainees would not enjoy the same menu of rights afforded the average criminal suspect. They might not be allowed to meet with their lawyers during interrogations, and press and public access to the proceedings would be restricted.

THE 'INVOLUNTARY COMMITMENT'-PLUS COURT:Brookings Institution legal fellow Ben Wittes just published "Law and the Long War," a book that advocates a special federal court to replace Guantanamo's review procedures, based on the premise that there is plenty of precedent for preventive detention. Potentially violent patients with mental illness can be legally committed without being convicted of any crime, for example. Lawyers would be cleared to see pertinent classified information, but rules for entering evidence would be more lenient than in civilian court. Chain-of-custody requirements would be lax, for example, so cases wouldn't get thrown out over quibbling about whether or not detainees were alerted to their right to remain silent. Only foreigners would be tried in this court; U.S. citizens and residents would be routed through standard civilian courts.

MILITARY COMMISSIONS, VERSION 3.0: A law professor at the U.S. Coast Guard Academy, Glenn Sulmasy, who will wrap up a book on the court this summer, advocates a "natural evolution" of the current military commissions, incorporating civilian oversight and abolishing preventative detention. The president would appoint trained federal judges, while Justice Department prosecutors would argue for the government and military lawyers would represent detainees. Trials, to be held on military bases, would be closed to the public, but observers from the United Nations and nongovernmental organizations (NGOs) would be allowed. To whittle down the number of detainees eligible for trial, Sulmasy advocates renaming the War on Terror as the War on Al Qaeda. "We're not fighting Hamas. We have an identifiable enemy," he says.

THE LEGAL MELTING POT: In the system devised by conservative former federal prosecutor Andrew McCarthy, the prosecution and the defense would be drawn from a pool of lawyers at the Justice Department and in the military's Judge Advocate General's offices, while judges would be chosen by the chief justice of the Supreme Court. McCarthy's plan calls for all enemy combatants to be processed within one year of capture, regardless of where they were apprehended or held (U.S. citizens and legal residents would not be eligible). Trials would be similar to those conducted by military commissions but would bring in judges from the U.S. criminal system as a check on juries, which would be composed of five military officers. Before taking office last year, Attorney General Michael Mukasey wrote of his support for McCarthy's plan. The two men have a history; Mukasey was the judge on the famous case against the 1993 World Trade Center bombers that McCarthy helped to prosecute.