I wasn't saying that Obama intended to extend the rationale to future cases. I was asking you: what possible grounds is there for confining the rationale to past cases?

Fair enough. The rationale is this - this is how I would hope Obama would frame it in announcing his proposed special court:

These special courts are created to resolve one problem and one problem only: we want a process that is more fair to the defendants, more adherent with the rule of law, than the current military commission tribunals. On the other hand, if we simply transferred these cases to regular US courts, because of some abuses committed by the previous administration, some detainees whose guilt of heinous crimes is practically unquestionable would have to be released. Neither situation is acceptable; therefore a third way is required.

The previous administration's abuses happened because they thought that US Constitutional principles would not apply to these suspects, because they were not US citizens or people acting in the US, because they were enemy combatants. They were wrong, but I'm stuck with cases that would be dead or seriously weakened if brought in US court, so I'm not going to do that.

But once these Bush-era detainees cases are adjudicated, the special court will be dissolved, Guantanamo will be closed forever, and all future terrorism cases will be handled in strict adherence to American rule of law. Period.

Shorter version: I'm only doing this because Bush fucked up and these are extremely serious cases. Then, no more.

Now I've answered your question. Will you answer mine? If transferring KSM's case to US court would result in dismissal due to Bush abuses, is that a just resolution?

I think the discussion was based on the assumption that the constitutional violations are so severe in these cases that conviction will not result in a normal proper US court of law. Otherwise, there is nothing to talk about, is there?

No. There's a difference between trial-level court and an appellate court reviewing a conviction.

What Obama is dealing with (or at least this is the hypothetical we are entertaining, because none of us really know for sure) are cases that might survive appellate review (due to overwhelming evidence of guilt), but would either be thrown out or severely damaged at trial level.

My point is simply that, under our rule of law, Constitutional violations are not an automatic get-out-of-jail-free card.

Did you read the 1935 case, where the Supreme Court overturned murder convictions of African-American defendants because the confessions were obtained through beatings? Was justice served in that case?

I just finished reading Brown, and yes, I agree with its holding and I think justice was done.

And I freely admit that I'm not eager to distinguish that case from the problem Obama has, lest it be mistaken that I think torture is ever right. It's not. It wasn't in Brown and it's not today.

But the cases are distinguishable - the confessions in Brown were the only state eviednce and it appears on the merits that the defendants were innocent. Obama appears to be talking about confessions that were coerced, but nonetheless true - and I would add, probably would have been freely given without coercion, which only makes the Bush decision to torture that much more galling and incomprehensible.

(Again, I'm not saying that's the case for all Gitmo detainees, it seems many may in fact be innocent, my concern is for the really bad actors, as we need a solution that works for all cases.)

Also, in Brown there is not the problem Obama's DOJ will face of investigations begun outside this country in a military setting under the assumption that they were extra-constitutional suddenly, after 7 years, being shifted to US court and the attendant windfall for the defense, and extreme disadvantage to the prosecution.

But I think I understand your position, that all those cases should be tried in regular US court and damn the consequences, even if it means people responsible for over 3000 homicides walk free. It's principled, and I admire it, but I think the idea of setting KSM free at this point is outrageous, and would not serve the interests of justice.

We just disagree on this, and I don't think we are going to change each other's minds.

This is exactly the kind of thinking that led to the tragedy of Willie Horton.

You know what? Spare me. If it wasn't for your boy 43 and his outrageously incompetent prosecution of the "war on terrah" -- idiotic policies you cheered on -- Obama wouldn't have to clean up this mess in the first place.

The shortest version @Jestaplero

There is a ticking bomb in New York City...

There is no logical difference, whatsoever, between the argument that Jestaplero is making with respect to Khalid Sheikh Mohammed and the argument Alan Dershowitz made with respect to the ticking bomb.

You don't understand my position. Dershowitz was saying torture might be justified under certain circumstances.

I think it's never justified - but neither do I think KSM gets to walk just because Bush tortured him. I think the Bush officials who ordered torture should be prosecuted, too.