This point has been overlooked in the first round of coverage about President Obama's decision to use military commission tribunals for some of the Gitmo detainees: according to an administration official, most of the remaining 241 detainees will be afforded Article III trials -- that is,  fully-fledged, regular trials, unless they're released without trial. Some of them might be shunted to a newly-created national security court, if the administration and Congress team up to create one.  The remaining detainees -- presumably dangerous folks who the administration wants to detain but who haven't had the right type of evidence accumulated against them -- will be tried by the military. The AP says about 20 military commissions will be held.

On first read, then, the military commissions are being used as a way to justify indefinite detention -- to create a means through which habeas corpus rights for these prisoners can be exercised (but not fully granted) and then exhausted.

One question: it's totally true that the criminality, so to speak, of the Gitmo detainees ranges from innocent to murderous.  Where does the administration draw the lines -- release, Article III, commission -- and in doing so, do the lines appear capricious enough to provoke the ire of the regular judicial system and Congress?

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