The basic argument is that neither the Bush administration’s paradigm of the Law of Warfare nor a total acceptance of the Civil Society argument (typically from left/libertarians) is adequate to the task at hand. The key is not to create our legal frame by fights between an experimental executive and a judiciary that simply has negative power (can’t do that…can’t do that….) but can’t define positively what they should be doing. That task falls to the Congress. That way also securing a frame that both parties will accede to and defend throughout this period (a la the Cold War bipartisan consensus). The latter important because for Wittes (here I think he is spot on) the increasing politicization/partisanization of the process is making both sides give radically simplistic answers to what are otherwise extremely difficult questions.
Wittes thinks the proper legal analogy is actually from cases of mentally disturbed persons. The prosecution has to give much more evidence up front (much higher threshold than currently in place even with habeus corpus) as well as greater ability to see evidence by the defense and yet when that threshold is cleared judicially (i.e. the person is declared danger to self/society and is put in psychiatric ward) there are no questions asked as to the detention’s legal status.
You can also listen for the legislation that should be in place vis a vis interrogations (CIA), detentions, trials, and surveillance.
Edit I: Germaine to this discussion, the Hamdan verdict is in.