WASHINGTON — With his national security team in place, President-elect Barack Obama and the team's members now face imminent questions not only about closing the Guantánamo Bay, Cuba, detention camp but also about whether a new legal structure is needed going forward to handle detainees wherever the government holds them.

The convergence of a new administration and wide criticism at home and abroad of the current system of detention and military commissions has galvanized national security experts and scholars, inside and outside of government, in a vigorous debate over placing the legal fate of detainees in the hands of the domestic criminal justice system, a specially created national security court or a hybrid version of both.

"In this debate, you have two polar extremes and some people in the middle," said national security law scholar Robert Chesney of Wake Forest University School of Law. "At one end, there are those who say the criminal justice system is not remotely adequate for handling terrorism, and the other extreme says terrorism can be handled like any other crime.

"Everyone is floating trial balloons at this time," he said, adding, "I don't think there's an easy solution of any kind."

Along with those scholars, former government prosecutors and defense lawyers, organizations such as the bipartisan Constitution Project and advocacy groups such as Human Rights First, the American Civil Liberties Union and the neoconservative Foundation for Defense of Democracies have weighed in on the question with special reports and articles.

But despite diverse and divergent opinions, there appears to be agreement on what Jennifer Daskal, senior counter-terrorism counsel for Human Rights Watch, calls "the absolute first step."

The world's condemnation of Guantánamo is not about a place, but a system of indefinite detention without charges and trials that fail to abide by basic due process guarantees, she said.

"One of the problems the Bush administration created is it had an extremely broad definition of who could be detained. Now it has released hundreds of detainees," she said. "Going forward, it seems essential that the U.S. adopt a detention theory that limits who falls into the category of those we want to bring back to the U.S. for long-term detention."

Stephen Vladeck of American University Washington College of Law, who was part of the legal team that won the Supreme Court challenge to the Military Commissions Act in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), agreed, adding, "When push comes to shove, that is where the debate is going to be — can we hold these guys indefinitely, and which guys, and under what procedures?"

Trial balloons

When people talk about closing Guantánamo, are they speaking specifically or generically, asks Amos N. Guiora of the University of Utah S.J. Quinney College of Law, a national and international security law scholar and a research fellow at the International Institute on Counter-Terrorism in Israel.

Guiora said senior military and intelligence officials have estimated that about 25,000 detainees are being held worldwide by, or on behalf of, the United States. Like Daskal and Vladeck, he believes the first step is to develop criteria for "vetting" these detainees to determine who presents a continuing threat to America's national security.

Those who don't present a continuing threat should be released — an admittedly enormous logistical and diplomatic operation, he said. But those presenting a continuing threat should be brought to trial in the United States.

On the debate spectrum over the use of federal criminal trials, a new national security court or a combination of the two, Guiora falls into the last category and proposes the creation of a "domestic terror court" to handle individuals who are neither prisoners of war nor criminals in the traditional sense.

Because of the numbers and nature of the cases against them — largely involving classified information — Guiora argues that Article III courts are not the appropriate forum for these trials, and juries would not be able to serve as a jury of peers.

Guiora would place his domestic terror court, he said, within the existing Foreign Intelligence Surveillance Court (commonly called the FISA court), a special court created by the Foreign Intelligence Surveillance Act to review applications for warrants related to national security investigations.

Under his proposal, current FISA court judges (appointed by the chief justice of the United States) would be the trial judges, and there would be an appeal to a federal court of appeals. Classified information could not be introduced unless a prosecutor deemed it necessary to ensure a conviction, but the judge would review the information ex parte and make every effort to persuade the prosecution to declassify it. If introduced, the classified information could not be the sole basis of conviction; it could only bolster criminal evidence.

"I have created this hybrid court in the context of an independent judiciary — it's not an Article III court, but it's not a military commission," Guiora said, adding that it is an effort to "civilianize" the process and to put an end to indefinite detention, "which has been the case for the past seven years."

Another proposal put out for debate would create a new national security court (NSC), analogous to, but not within, the FISA court. Andrew McCarthy, chairman of the Foundation for Defense of Democracies' Center for Law and Counterterrorism, has suggested a national security court with district and appellate court components.

The appellate court component would have jurisdiction to review combatant status review tribunals, with high deference to the executive branch. The district court component would have concurrent original jurisdiction over offenses that, by statute or under the laws of war, may currently be tried by military commissions, as well as jurisdiction over other statutory offenses common to international terrorism cases.

His proposal also suggests forming an NSC unit combining Justice Department attorneys who specialize in terrorism and other national security cases with military lawyers. This unit would represent the government before the NSC. The NSC would have its own panel of defense lawyers drawn from the military and qualifying civilian defense counsel who would have appropriate security clearances and experience in national security litigation.

Human Rights Watch's Daskal, at the opposite end from Guiora and McCarthy in this debate, countered, "It's time to try the system we have that we know works. In the same period that military commissions have prosecuted three detainees, two of whom are back home, the federal courts have prosecuted 145 terrorism suspects."

The criminal justice system, Daskal said, is a system that is credible, offers years of precedent upon which to draw and treats those convicted "as the common criminals that they really are rather than elevating them to the status of warriors." Federal judges, she said, have experience with the Classified Information Procedures Act and have developed ways and rules to protect classified information and still provide a fair trial.

Retired Navy Lieutenant Commander Charles Swift, who defended Salim Hamdan in his military commission trial and is now in private practice in Seattle, said the Justice Department has never failed to convict a hard-core member of al-Queda.

"Are there some concerns about evidence?" he asked. "That might require us to look at how national security evidence is handled in a court, but I think that's an evidentiary question, not a question of a new system."

Good and bad

Both sides in the debate oversimplify their positions to some extent, said Wake Forest's Chesney. "When people talk about national security courts, they're looking for ways to have more procedural safeguards but perhaps retain the same flexibility we've had with the military detention system," he said. "It's not clear how you do it. If you're exercising criminal law functions: the confrontation clause, Brady law disclosures — no matter what you call the court — these are going to apply."

And, he added, the prosecution in the criminal justice system must prove guilt beyond a reasonable doubt. "It does mean that, even when the government has lots and lots of evidence, they may not be able to get a conviction. Do we want as a society to use that standard in this context?"

A national security court is the unknown option, said former federal prosecutor Daniel Richman of Columbia Law School. "We know the Guantánamo scheme, and we have a sense of the criminal justice system, and to the extent we have real concerns about the inadequacies of both of those, a number of us, including me, are very sympathetic and attracted to the notion of a third way," he said, adding that he is not sure what that should be.

The criminal justice system is attractive because it offers a set of procedures "that have a deep legitimacy and familiarity," he said. But he questions whether it has been truly successful in the terrorism context even when convictions have resulted.

"Yes, there were convictions. But success also has to be measured against the costs, both in kinds of information turned over in discovery and by testimony and the kinds of procedures that standard adjudications require when it comes to investigative techniques," he said.

In terms of finding a "third way," Richman said, "I would worry about coming up with an amalgam of what we like in criminal procedure and the Guantánamo system, and creat[ing] this 'two from column A' and 'three from column B' approach."

As for Guantánamo itself, it can be closed "with the tools we now have," insisted retired Navy lawyer Swift.

Of the roughly 250 detainees there, 30 to 40 are "hard-core" al-Queda members, he said, and should be tried in the criminal justice system.

Those remaining fall into two groups: those who did nothing but appear threatening, such as a group of Chinese Uighurs who are being held, and those captured at the time of insurgency in Afghanistan. The former should be sent home through diplomatic efforts, and the latter — the "only real military detainees" — should, whenever possible, be put into retraining or re-education programs such as that used by Saudi Arabia, he added, or if captured on the battlefield, be left to courts-martial proceedings.

When all that is done, there may still be a small category of people for whom there is not enough evidence to charge but who are "really bad guys posing a continuing threat," said American University's Vladeck.

"You often hear the retort 'we don't have preventive detention in this country,' but it's not true," he said, explaining that there are precedents involving, for example, quarantine cases and civil commitment of sex offenders.

"I'm not saying these are great precedents, but we can borrow from these areas," he said. "At that point we would be so far past where we are now. There is no perfect system."

An issue of preventive detention will soon get a hearing before the U.S. Supreme Court. The court on Dec. 5 agreed to hear a case raising the issue of whether the president can order the indefinite military detention of people living in the United States. Al-Marri v. Pucciarelli, No. 08-368.

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