But terrorists fighting a war fall outside the parameters of established legal mechanisms honed over the centuries that deal only with the conventional paradigm of war: Uniformed armies battling one another on a recognizable battlefield at the call of their respective governments.

Meanwhile, three Supreme Court rulings, a ruling by a military court and a military tribunal strategy for adjudicating the fate of detained suspected terrorists that’s in disarray have left the government’s prosecution of captured terrorists in virtual legal and moral purgatory.

Some believe that the hurriedly conceived and ill-thought-out post-9/11 process for legally meting out the fate of suspected terrorists captured during combat in war requires a new judicial system for this new manner of warfare.

“I think they were right initially: We were being attacked and expecting flurries of attacks over the next few years … five to six years later, however, we need to look at fresh options,” Sulmasy said.

“It was understandable the reaction initially by the administration to rely on the tools from the previous wars—they were upheld legally and politically back in the Second World War. Also, we were expecting numerous attacks and have prevented many of them … even including Richard Reid and others. So, although lawful initially, the Military Commissions Act, which was partially in response to Hamdan, was created to meet many of the needs of policy makers and special interest groups—as well as incorporating enhanced human rights issues into the commissions,” he said. “The natural evolution in this new war is for the MCA to now morph into something more permanent, a structure that can endure the ‘long war’ we are engaged in. Thus, it seems more evolutionary as we all deal with the new facets of this war than anything drastic … we all are trying to figure out how best to proceed.”

“The fundamental problem is that the law was not carefully written,” Madeline Morris, a Duke University law professor, has said. “It was rushed through in a flurry of political pressure from the White House … and it is quite riddled with internal contradictions and anomalies.”

It’s for these reasons that Sulmasy – who has deep convictions about ensuring human rights while at the same time upholding the rule of law—is calling for an unprecedented overhaul – a complete re-thinking, if you will—of what defines war in the context of the war on terrorism and the prosecution of terrorists. It is a war most authorities expect to continue for a generation, at least, as states increasingly are forced to wage combat against a non-state, but ideologically unified, aggressor. In a sense, then, it is the common religious-inspired fervor of jihadists that is the combat uniform worn by terrorists.

Sulmasy’s approach is hardly radical, given the unique war on terrorists. Not surprisingly, the State and Defense departments are listening closely to what he has to say and what he is proposing.

Commander Sulmasy, who’s been interviewed at length by HSToday.us in recent weeks, is the first permanent commissioned military law professor (appointed by President Bush in 2003) at the Coast Guard Academy, where he is an associate professor teaching international, constitutional and criminal law. He’s also a judge advocate, served on the faculty of the International Law Department at the US Naval War College and next year will be a National Security and Human Rights Fellow at the John F. Kennedy School of Government. He’s written extensively in law journals on the legal challenges of adjudicating captured terrorists.

In the wake of the recent revelations that the White House has discussed closing GITMO and the Democrats are working on a plan to cut funding for the prison, forcing its closure—an action which Secretary of Defense Robert Gates and Secretary of State Condeleezza Rice have indicated they are in favor—Sulmasy told HSToday.us that, even though “everyone is saying it must close, it can't close!” At least not now, and not arbitrarily without first considering a variety of crucial issues.

Sulmasy said, "The administration is probably right about looking at closing the base at GITMO—clearly the process will have to begin sooner or later—but as some have recently noted, we have to have a plan in place before making such changes. Without something in place, we need to maintain what we have—even if problematic as a matter of public relations.”

In a letter to Bush, Rep. Duncan Hunter said any plans to immediately close Guantanamo were "misguided" and "dangerous."

"Next to bringing our troops home prematurely without giving the 'surge' a chance to succeed, the last thing President Bush should do is shut the prison at Guantanamo," said Rep. F. James Sensenbrenner, former chairman of the House Committee on the Judiciary, in a recent op-ed.

White House spokeswoman Dana Perino, though, assured “the President has long expressed a desire to close the Guantanamo Bay detention facility,” but doing so “in a responsible way."

Similarly, while Democrats want to close GITMO, they do not intend to force GITMO’s immediate closure – they seem to understand the irresponsibility inherent in doing that – so they want to cut the terrorist prison’s budget by half, which would keep the prison afloat for half a year at least, giving the administration time to come up with a plan for dealing with the detainees.

Still, some lawmakers, like Rep. Moran, do want to recklessly force an immediate shutdown, but have been forced to concede there is too much concern on the part of other lawmakers that doing so would put in question the secure detention of admittedly dangerous suspected terrorists. In May, the House voted narrowly— 220 to 208—on a much milder proposal by Moran demanding that SecDef Gates devise a plan to transfer detainees out of Guantanamo. Opposing the legislation were 15 Democrats. But now, legislation to shut down GITMO has been re-introduced and will be taken up in coming days and weeks.

Also, on June 29, 145 members of the House sent Bush a letter urging him to close GITMO and move the detainees to military prisons in the states.

“… The detainment facility has undermined America's image as the model of justice and protector of human rights around the world,” the signees declared, noting, “holding prisoners for an indefinite period of time, without charging them with a crime, goes against our values, ideals and principles as a nation governed by the rule of law. Further, Guantánamo Bay has become a liability in the broader global war on terror, as allegations of torture, the indefinite detention of innocent men and international objections to the treatment of enemy combatants has hurt our credibility as the beacon for freedom and justice. Its continued operation also threatens the safety of US citizens and military personnel detained abroad.”