[Neal Katyal's buddy*] Jack Goldsmith and Benjamin Wittes, Dec. 8, 2008

What about acquittals and short sentences? Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist. In ordinary criminal trials, guilty defendants often go free because of legal technicalities, government inability to introduce probative evidence, and other factors beyond the defendant's innocence. In terror trials, these factors are exacerbated by the difficulties of getting information from the place of capture, classified information restrictions, and stale and tainted evidence.

The possibility of acquittals or short sentences is a problem for terrorist trials. The Bush administration reserves the authority to continue holding acquitted terrorists or even those convicted in the military detention system after their sentences have run. But this authority undermines the whole purpose of trials, and the Bush administration has never exercised it. Putting a suspect on trial can thus undermine detentions the government regards as important. For example, the government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama Bin Laden's driver, under a military detention rationale. Having put him on trial before a military commission, however, it would have been unseemly to sustain his detention beyond the light sentence he is now completing back home in Yemen.

This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.

http://www.slate.com/toolbar.aspx?action=print&id=2206229

Also see the "insane" ProPublica article windy_ quoted from above.

*Jack L. Goldsmith and Neal Katyal, July 11, 2007

The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

http://www.nytimes.com/2007/07/11/opinion/11katyal.html

“And so going forward, my administration will work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”

The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.

“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. He did note, however, that “there are places in the United States that would be happy” to take the detainees, because “there are prison systems that need them or they’ll be facing massive unemployment.”

Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution.”...

And by the way, don’t expect Obama to get any help from Republicans, who generally don’t see a problem with preventive detention but aren’t about to help Obama write a plan for shutting down Guantánamo. “I don’t think Congress is going to provide any funding for shutting down Guantanamo until we see a plan,” Senate Minority Leader Mitch McConnell of Kentucky told reporters after Obama’s speech. “And they might not want to then, depending upon the adequacy of the plan.”

http://blogs.cqpolitics.com/balance_of_power/2009/05/on-detainees-consulting-congre.html

You may be interested in this paper - it includes discussion of the cases you've posted about recently:

Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis
Katherine Nesbitt, March 22, 2007

From the Abstract

The two countries' approaches to preventative detention, however, have been distinct. In the United States, the Bush Administration has adopted pretextual measures that authorized the preventative, and potentially indefinite, detention of terrorist suspects as enemy combatants or as material witnesses. In Australia, Parliament placed preventative detention directly into its Criminal Code, authorizing the imposition of preventative detention and control orders in cases of terrorism.

This Article examines and compares these unique preventative detention strategies employed by the U.S. and Australia in the war on terrorism, and analyzes their constitutionality in light of the U.S. Supreme Court and Australian High Court precedent addressing administrative detention. In the United States, the Supreme Court, armed with the Bills of Rights, has been more assertive than its Australian counterpart in striking down detention schemes which authorize indefinite regulatory detention without charges. Nevertheless, the preventative detention strategies employed by the United States are far more intrusive of individual liberties than the Australian legislative model. Yet, while the Australian measures incorporate more procedural protections and safeguards from abuse than their U.S. counterpart, and therefore are the more favored approach, neither scheme is consistent with the fundamental principles and values underlying both the U.S. and Australian systems of criminal justice and due process.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975792&rec=1&srcabs=1055501