Listening to the discussion and Glenn's question about a terrorist possibly being acquitted by a jury made me think of another situation the preventive detention system might be designed to deal with. Regarding Hamdan:

A jury of six military officers Thursday sentenced Osama bin Laden's former driver to 5½ years in prison after his conviction on charges of providing material support to al Qaeda.

After Salim Hamdan serves his sentence, he could still be kept as an enemy combatant at Guantanamo Bay.

Pentagon spokesman Bryan Whitman said after the verdict Wednesday that Hamdan was now a "convicted war criminal" and that he was "no longer considered an enemy combatant."

But on Thursday, Whitman said Hamdan's status would revert to "enemy combatant" when his sentence is completed.

As an enemy combatant, Hamdan can be held indefinitely by the United States, although he would be eligible to appeal to an administrative review board to determine whether his status as an enemy combatant should continue.

http://www.cnn.com/2008/CRIME/08/07/hamdan.trial/index.html

This didn't happen - Hamdan was instead sent to Yemen where he served the remainder of his sentence (5 years was considered served) and then released in January. (http://www.washingtonpost.com/wp-dyn/content/article/2008/11/24/AR2008112403159.html and http://www.nytimes.com/2009/01/12/world/middleeast/12yemen.html?ref=world)

Might the preventive detention system also be designed to encompass those with relatively short sentences, such as Hamdan or the Buffalo Six (whose sentences range from 8-10 years)? Or might some of those who "cannot be tried" be those who, if they were tried and convicted, would likely receive short sentences? The system wouldn't be necessary for someone who could be convicted and given a long sentence, such as Moussaoui, who was sentenced to life in prison.

Judge threatens sanctions over gov't wiretapping

SAN FRANCISCO—A federal judge on Friday threatened to severely sanction the Obama Administration for withholding a top secret document he ordered given to lawyers suing the government over its warrantless wiretapping program.

U.S. District Judge Vaughn Walker in San Francisco ordered Justice Department lawyers to court on June 3 to tell him why he shouldn't award unspecified damages to the now-defunct Oregon arm of the Al-Haramain Islamic Foundation. The group alleges that government officials eavesdropped on their telephone calls without court authorization.

The National Security Agency has also refused the judge's previous orders to provide security clearances to two of the charity's lawyers so they can view the top secret document.

The judge had issued a written order on Jan. 5 and then reinforced it during a hearing later that month. He also barred the prosecutors from appealing the order, but they asked the 9th U.S. Circuit Court of Appeals to step in anyway. The appeals court refused to hear the case.

On May 15, government lawyers told Walker they would refuse to comply with his order.

http://www.mercurynews.com/news/ci_12430040?nclick_check=1

Judge Walker's order to show cause: http://www.eff.org/files/filenode/att/630OrderinAlHaramain.pdf

More from EFF: http://www.eff.org/deeplinks/2009/05/judge-takes-governme

Dangers of a preventive detention law

In the case of sexually violent predators, the courts have carved out a narrow exception to this rule, and allowed detention of people who are both dangerous and suffer from a "mental illness or mental abnormality" that makes them unable to control their behavior. This second element is essential. In a 2002 case, the Supreme Court ruled that Kansas could not detain someone as a sexually violent predator, no matter how dangerous he might be, without this lack-of-control showing. This showing is necessary, the Court said, to distinguish those subject to civil commitment from those who should be handled by the criminal justice system. It is necessary to prevent the civil commitment exception from swallowing the rule that those whom the government wants to imprison must first be provided with the protections of a criminal trial.

In other words, a finding of dangerousness alone is not enough to permit indefinite detention.

There are other differences as well. Consistent with the idea that those detained are suffering from a mental illness, sexually violent predator laws generally require that suspects receive treatment for their condition, are housed in psychiatric facilities, and are otherwise treated like patients rather than prisoners. By contrast, some preventive detention proposals call for detainees to be housed in maximum-security prisons or military brigs. This starts to look a lot like punishment, not treatment.

Supporting Al Qaeda or the Taliban may make a person dangerous, but it is not a recognized mental illness. And no one contends that Al-Qaeda members are unable to control their behavior, or are most appropriately dealt with through psychiatric treatment. So proposals for a new preventive detention law for terrorist suspects simply cannot be justified by reference to the sexually violent predator system.

Human Rights Watch http://www.hrw.org/en/news/2009/01/03/dangers-preventive-detention-law

Whatever "appropriate legal regime" is worked out between Obama and Congress, let's hope we're given more than 5 minutes before the roll call vote to have a look at it and to provide our "input."

I believe this is what you remember reading:

-- ondelette Monday, April 20, 2009 11:33 AM

http://letters.salon.com/opinion/greenwald/2009/04/20/harman/permalink/393b8d1d2769065ddd97910199269682.html

It's all the same plot, which seems to have been forced from KSM using waterboarding. They are all accused of attempting to disrupt the nation's energy infrastructure, with Majid Khan as the mastermind -- the U.S. believes he had the necessary skills to do this because he ran the cash register at his father's gas station in Baltimore MD.

It took me ~10 seconds to find that in ondelette's archive, which is the first place I looked because ondelette is not a plagiarist, nor a sloppy writer.