According to the New York Times, the legislation is in its embryonic stages. But if the second category becomes law as described, it potentially represents a reaffirmation of the military trials created by the Uniform Code of Military Justice, whereby defendants cannot be convicted on the basis of hearsay evidence or information obtained by coercive methods. It has long been the contention of military officers opposed to the tribunals, such as Lt. Commander Charles Swift, one of the attorneys in the Hamdan case, that the UCMJ trials strike an appropriate balance between internationally-recognized due process rights and national security.
More problematic is the first category, whereby the most dangerous detainees would forever be housed in military facilities. Again, the proposal is preliminary, but here a category of detainees would receive less due process than they currently do under the military commissions. Court challenges would probably be inevitable, and given the trajectory of the Supreme Court's rulings over the last three years -- all in favor of more process rights than the administration desires -- the category would probably be rather short-lived. The Times describes opposition to the entire revamped framework for enemy combatants as coming from Vice President Dick Cheney and Attorney General Alberto Gonzales, so it's possible that the first category is a way to draw them on board with the assurance that the proposal won't withstand judicial scrutiny.
Whether Congress would bless the administration's three-tiered proposal as the Times describes it is uncertain. But the first step is for Gates, Hadley and their allies to persuade Bush and Cheney that they have a workable plan to shut Guantanamo Bay down. And that probably requires enlisting Congressional Democratic support, difficult as it is to get Patrick Leahy to hold hands with Dick Cheney.