There is no third way. Just take what either has in the way of tenable proposal true to the letter of our Declaration and Constitution and apply them.
(Or, just cut to the chase and follow Henthoff in this instance.)
The Constitution itself realizes that wartime is different - habeous corpus, for example, can be suspended during an invasion, but that power is granted to the legislature, not the executive...
I don't think it was an EO ...
Hentoff says it is by EO in his article:
What Bush has done by executive order—bypassing Congress and the constitutional separation of powers—is to establish special military tribunals to try noncitizens suspected of terrorism. Their authority will extend over permanent noncitizen American residents, lawfully living in the United States, as well as foreigners.