When massive intentional abuses occur, the detainees cannot be convicted in a proper court of law. That is a simple fact, and there is no other solution that is fair to the People.

So, just to be clear: what you are saying is that, if in the case of 9/11 mastermind KSM, if he cannot be convicted in regular court due to abuses that Bush officials committed, we should just let him go? And THAT is a fair solution for the people of this country? Is that what you're really saying?

I trust you will forgive me for bringing this thread over to today's post, as it is still on-topic.

If we do what Obama wants, we'll be announcing the world that we're a country that believes that it's fine to use torture-obtained evidence whenever the tortured suspect is sufficiently (and allegedly) dangerous. Why would that reasoning be confined only to past cases and not future cases where detainees are tortured?

As you like to say, we should refrain from criticizing Obama for things he hasn't yet done, let alone for things he hasn't even proposed.

In the Obama quote you published he is explicitly speaking of the already-extant Guantanamo cases he is inheriting from the Bush administration, and the problems that already exist with those cases. In your comment, above, you accuse him of wanting to set up a procedure that will be used for new cases going forward. What can I say to that? Of course I don't think he should do that. Should he propose it. Which he hasn't. The reasoning should be confined only to those cases and not future ones because he's talking about the ones that the Bush people have already screwed up.

Glenn, you say there is no good reason why all these cases can't be immediately transferred to regular court for adjudication. Let ask you an "interest of justice" question:

If the case against Khalid Sheikh Mohammed, as it stands now, suffers from a Constitutional violation severe enough to warrant dismissal - in other words, that transferring his case to US district court would result in automatic dismissal and his freedom - do you think the interests of justice will have been served?

But creating a whole new court (a "national security court") or some new process where torture-obtained evidence is now admissible is not the answer.

I don't see what choice he has. The answer can't be to try them in a regular US criminal court, not these defendants, not at this point. These investigations were never conceived to pass Constitutional muster in a US court and, the more I think about it and read other commenters' thoughts, entire cases against some really dangerous people are likely to get thrown out.

Allow me to explain: in a normal criminal case, investigators are on notice from the very start to observe Constitutional safeguards - the searches and seizures must meet 4th amendment requirements, ID procedures not unduly suggestive, defendants' statements not coerced, right to counsel granted - or valuable evidence will be suppressed by the court at the pre-trial evidentiary hearings. That's all fair enough.

But these cases seem to have been built from the beginning with the expectation that they would be tried in a non-Constitutional venue like a military tribunal. Was that right? I don't think so. I agree with you, there was no good reason these cases should not have been treated as regular US criminal cases.

But that's now what happened. The outgoing administration decided to treat these detainees as unlawful combatants to whom Constitutional protections did not apply, right or wrong, and that's the kind of cases we are now stuck with. To hand these cases over now to a US attorney, riddled with massive Constitutional abuses, will deny the People a fair trial.

Haven't we seen enough evidence over the past 8 years to know that opening those doors is certain to lead to far worse mischief?

Obama's proposal seems to be limited to just the cases remaining at Gitmo. To address the concern you raise, as soon as those cases are resolved, this "national security court" should be closed along with Guantanamo, and all future terrorism cases handled like any other US criminal case.

Look, I think Glenn, ondelette, lastname, et al are all making excellent points. All I'm really saying (and thank you Mona and Arne for weighing in) is that it is also a miscarriage of justice if the prosecution in these cases has been put at a disadvantage by the incompetence of the Bush officials, that which wouldn't have happened if the investigations had been done right in the first place.

Neither you or I know for a fact that the prosecutions (should they be in regular US courts) of some of the worst suspects haven't been seriously or even fatally compromised by Bush admin tactics. In fact, that seems to be exactly what Obama is saying in the quote you posted.

The idea that we just have to use torture-obtained evidence or else big bad scary Terrorists will be on the loose sounds exactly like the same kind of fear-mongering, sky-is-falling hysteria that has justified everything that was done in the last 8 years.

The law in this country is that both the prosecution (representing the People) and the defendant are entitled to a fair trial. The public has an interest in seeing the truly guilty violators convicted. That interest has now been seriously jeopardized by those morons in the Bush admin who thought torture was a good idea. That's my concern, and it seems to be Obama's as well, and I don't think that concern is rooted in fearful, "sky-is-falling hysteria."

I don't think you are fairly appreciating the very legitimate political and justice concerns that Obama is confronted with.