Josh Marshall makes an excellent point today in Talking Points Memo about the way decisions are being made on how to treat those arrested or captured in the Terror War.

"John Walker Lindh, a US citizen, gets a straightforward civilian trial. Zacarias Moussaoui, a French citizen, gets a straightforward civilian trial. Jose Padilla, a US citizen, is held indefinitely and without counsel as an enemy combatant. Yasir Hamdi, another US citizen, is also an enemy combatant being held indefinitely, but he may get a lawyer. The folks down in Guantanamo, well, who knows? "

"A military tribunal, civilian trials, various sorts of detention -- cases can be made for each method of proceeding. But the essence of the rule of law is having rules in place for how you're going to deal with people before you catch them, not making them up afterwards."

Atrios/Eschaton takes the argument one step further:

"We can debate about what the rules should be and when, but most importantly there should be rules. When talking heads get on TV and say with a straight face that the government should choose this system of justice over another one because it would be easier to get a conviction that way, our justice system has become a complete farce. If only it were funny."

It's not just tv-talking heads. Check out the options and reasons set out by "legal and government experts" in this Washington Post article today:

"In the Moussaoui case, the government also may balk at calling Binalshibh as a courtroom witness because of concerns over disclosure of classified information and the need to provide him with counsel, several officials and legal experts said yesterday."

According to one legal expert, "Bringing him here as a witness raises real complications...The government's best scenario is to get information from Binalshibh that helps them gather evidence to be used against Moussaoui and others."

A senior law enforcement official agreed: "He will be most useful as a way to gather leads that could lead us to more evidence. Direct testimony might not be the best option."

A law professor at the University of Maryland's Center for Health and Homeland Security "noted that the government repeatedly has invoked the need for interrogation in arguing for the detention of foreign prisoners at Guantanamo Bay, Cuba, and American prisoners in U.S. jails. That argument is particularly strong in the case of Binalshibh. They're not going to be putting him in a situation where he will be subject to [legal] process or subpoena or anything of that nature."

So the choices at this juncture seem to be: