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Let’s imagine we’ve captured a highly trained terrorist al-Qaeda was attempting to embed in the United States, à la Mohamed Atta and company, to carry out mass-murder attacks in American cities. For eight years, our national-security debate in the United States has been divided into two camps on these cases.

In the first are those who accept the post-9/11 law-of-war paradigm. They would have that enemy combatant detained for intelligence purposes (and to remove him from the battlefield) until he could be tried for war crimes by a military commission, and then either executed or imprisoned for life. In the second are those who uphold the pre-9/11 law-enforcement paradigm. They would have that criminal defendant prosecuted in an ordinary civilian court, and correctly observe that federal courts have a strong track record of producing convictions and imposing adhesive sentences, at least for the tiny proportion of terrorists who have been tried in them.

Each of these philosophies has benefits. The law-of-war approach prioritizes intelligence-gathering and national security, while the law-enforcement approach ensures legal outcomes whose integrity is beyond reproach. Both have downsides. Foreign allies whose cooperation we need (because it is within their territories that most jihadists operate) won’t extradite captured terrorists to military tribunals, because they object to the tribunals’ lack of independent judicial oversight. But the due-process standards that apply in civilian judicial proceedings provide a trove of intelligence for enemies plotting to kill Americans. Consequently, there have been calls for a third way: a new legal paradigm that borrows the best of both worlds, specially designed for this novel security challenge, which is more like a war than a crime but different in many significant ways from a conventional war.

Here’s the problem: The hypothetical suggested in the opening paragraph, is not hypothethical: It is the real case of a real jihadist, an Ethiopian named Binyam Mohammed. And, rejecting both military and civilian justice, the Obama administration has come up with its own third way: releasing him.

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