“We could go into the grand jury and indict Osama bin Laden three times a week, but to do anything about it, you needed the Marines.”
Regardless of how you feel about The New York Times, even a stopped clock gets the right time twice a day. The Times recently published a story about Andrew McCarthy, the former SDNY AUSA who was on the prosecution team that worked the terrorism cases (pre- and post-9/11), and is now a vocal critic of the DOJ-centric approach to the fundamental question of how to bring terrorists to justice. The story is here: http://www.nytimes.com/2010/02/20/nyregion/20prosecutor.html?pagewanted=1&hp
There’s strong feelings on both sides of the issue. McCarthy demonstrates both that there is a wide rift between the two extremes (where, on one hand, terrorism is a purely political issue, and on the other, purely a military one), and that in the middle there is a fundamental question of criminal procedure: no matter how we conceptually characterize the issue of terrorism, the practical application of any system of laws requires a robust infrastructure.
As a SAUSA I saw (and was awed and humbled by) the complexity of our Federal Courts and the way in which the policy and procedural rules for prosecutions are layered to an incredible degree; a prosecution before a Court-Martial is a comparatively simple matter. The Guantanamo commissions, I think, were designed to apply most of the best of both of these worlds to the trial of terrorists in a court of law. If the tenor of the debate over the handling of Umar Abdulmutallab (the Christmas Day bomber) is any indication of the future justiciability of terror issues, the commissions may also be a legal posthistoric edge of chaos to which we must inevitably return (see J. B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407 (1996)) (also see Francis Fukuyama, The End of History and the Last Man, Free Press (1992)).
Also, McCarthy is right-on about needing the Marines.