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Nearly five years after the attacks of Sept. 11, 2001, our three branches of government have still not found the solution for dealing with all terrorists. The U.S. Supreme Court’s Hamdan v. Rumsfeld decision, despite the “landmark” headlines, deals only with foreign citizens that the executive has decided to charge in military commissions for violating the laws of war. It does not prevent our government from keeping Salim Hamdan as an enemy combatant. It does not directly affect the 400 other Guant�namo detainees who have not been scheduled for trial in military commissions or address the 30 to 40 “high-value” prisoners reportedly held at secret CIA sites. The Supreme Court in Hamdan invited Congress and the president to work out national security problems through compromise. The two branches should accept the court’s invitation to take care of unfinished business. That means more than military commissions. While the Guant�namo detainees and the secret prisoners present similar challenges, not many people have thought carefully about the next steps for the two groups. Now we need to speak up, to pressure the two branches to do more to protect our principles and our security. In Hamdan, the Supreme Court merely held that military commissions, as the president had constituted them, are illegal. Justice John Paul Stevens said the commissions did not comply with relevant portions of the Geneva Conventions and the Uniform Code of Military Justice. In the absence of congressional action, the military justice we mete out to al-Queda must comport with the courts-martial we use for our enlisted people. That is all. It is still not clear how Common Article 3 of the Geneva Conventions should affect other aspects of America’s counterterrorism strategy. Hamdan builds on two earlier decisions from 2004. In Hamdi v. Rumsfeld, the court ruled that even a U.S. citizen could be held, outside the criminal justice system, as an enemy combatant. Justice Sandra Day O’Connor said this designation was legal, provided Yaser Hamdi was given process beyond the president’s mere say-so. That still stands. In Rasul v. Bush, the court ruled that Guant�namo detainees are under American jurisdiction for habeas petitions. Some of that still stands, despite Congress’ attempt to limit habeas in the Detainee Treatment Act of 2005. These two decisions caused the Bush administration to form combatant status review tribunals (CSRT) for the foreign citizens held in Guant�namo. All the Guant�namo detainees are said to have gone through the CSRT to confirm their status as enemy combatants. Whether habeas is available to secret detainees is another question. The court has neither decided nor been asked whether Khaled Sheikh Mohammed, the alleged 9/11 mastermind, is entitled to the same access as the Guant�namo detainees. Deciding what to do with suspected terrorists is not easy. Many detainees are too dangerous to put back into circulation. Some released detainees, according to the government, have returned to the battle against us. Some may not be too dangerous. Of those, not all can be repatriated because of concerns they will be tortured in their home countries. Dangerous or not, some detainees cannot be prosecuted effectively in any court, civilian or military. There may be problems of proof. The government, without revealing sensitive intelligence sources and methods, may not have enough untainted evidence to convict them. It may need more time to interrogate other detainees, to disrupt terrorist plots. But the legal limbo should not go on forever. Somewhere between traditional courts and the Star Chamber, we must find intermediate solutions. We should separate out the low-level operatives and the cases of mistaken identity among the Guant�namo detainees and secret prisoners. They should be prosecuted through traditional means or released. Special courts With the rest, we must somehow limit special detention to high-level operatives who have high intelligence value. One idea is a special court, along Foreign Intelligence Surveillance Act lines, to hear executive applications for detention. The hearings could be secret. Although defense lawyers would not be allowed to get in the way of necessary interrogations, an ombudsman with a security clearance could appear on behalf of terrorism suspects. A rolling limit could be imposed on the total number of prisoners who are detained. The executive, limited to perhaps 50 slots, could be forced to choose special detention more carefully. With reasonable safeguards in place, the executive should reserve special detention for truly the worst of the worst. It is time for Congress and President Bush to accept the full challenge. It is time for them to act. A. John Radsan, a former federal prosecutor and a former assistant general counsel at the CIA, teaches at William Mitchell College of Law in St. Paul, Minn.

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