Regarding your previous question about what should be done in cases where, tainted-evidence-precluding-a-conviction nothwithstanding, there is compelling evidence, albeit legally inadmissable evidence, that certain individuals represent a credible and serious threat...

I was the one to pose that question originally, wondering if the Bush atrocities had put Obama in a Catch-22 situation. I hoped Glenn would respond with an opinion about whether tainted evidence would overwhelm any other, given the truly horrific violations of law and constitution we've seen at Guantanamo and our other prisons. I wondered if any case could ever be made in court, since the conditions of long-term imprisonment, let alone torture, without charges, might prejudice any legitimate evidence - like, for example, the video Daniel Pearl's murderers made.

It was a question about the reality of how a court operates and the rules of evidence. But I'm not getting an answer to what I guess is a technical question, but one I think is important.

I've always thought that anyone who can't be charged and prosecuted legitimately must be released - the end doesn't justify the means, and we lose much more than we gain when we violate our own laws and constitution.

As to what to do about people who are legitimately considered dangerous but who can't be tried, I figured as you did - that they could simply be tracked and observed and otherwise thoroughly monitored. Whether there are laws that would allow eavesdropping and restriction of movement and residence, I don't know.

But that doesn't answer my original question about whether a fair trial can ever be held for any of these prisoners, no matter how properly new evidence is obtained, because of how we've violated their rights every day for years.

I think you both might be reading something into my post that I didn't intend. When I asked if torture has created a Catch-22 for Obama - if torture and the exceedingly cruel conditions of imprisonment have made honest court proceedings impossible - I meant that and only that. I wasn't implying that there should be some kind of extra-legal way to keep people imprisoned without charges because any evidence is tainted by torture, as if I hoped that Obama would be justified in his bid for extended detention without trial. I don't hope for or want that - not at all. If these men cannot be tried, they should be released.

But - is such evidence as there is, like the video made by Daniel Pearl's murderers, tainted by the torture they have suffered and the conditions of long-term imprisonment? In court, is good evidence contaminated by bad evidence? Does the bad evidence cast such a pall that good evidence is overwhelmed? Does even the simple fact of long imprisonment without charges prejudice the possibility of a trial at all? So that even if you have good evidence and finally bring charges, the bad evidence and bad faith in failing to bring charges for so long make trial impossible?

My question was all about the realities of court procedures and practice. It was not about wanting to somehow continue to imprison people without trial simply because inadmissible evidence warrants that. I'd rather take my chances that we let guilty people go than to violate our constitutional guarantees of due process. I do not believe that the end justifies the means.

It's a given that these prisoners - wherever we're keeping them - are being deprived of basic human rights, let alone those we should guarantee them under our own constitution. I don't at all buy the claim that they are terrorists or the "worst of the worst" - I haven't seen the evidence.

So what should we do with them? Bring them into court and put them through the legal process they deserve and our laws mandate? I'd say yes. Except what about those who have been tortured? A few have "confessed" - some are said to have been leaders of the 9/11 attacks, and Khalid Sheikh Mohammed has claimed to have decapitated Daniel Pearl. But he apparently made that claim after being tortured.

Yet there is video of some of Pearl's captors standing next to his severed head, men who are now at Guantanamo. And the attorneys for Ahmed Omar Saeed Sheikh, whom Pakistan convicted of the crime, acknowledge his role in it but claim KSM was the actual murderer, based on his "confession." And Pervez Musharraf claims Pearl was murdered by a British MI6 double agent.

Given these claims and similar ones involving other prisoners, we need to know if any of them are true. But have the conditions and torture these men endured at our hands forever and completely tainted any possible court proceedings against them? I thought that maybe prosecution would have to start from square one, assemble evidence from scratch - like Pearl's captors' own video - and present it. But can this work now? Can you start all over in such a horribly compromised legal situation? Is legitimate evidence ruined by illegitimate evidence?

Bottom line: Have the actions of the Bush administration completely hamstrung Obama from ever prosecuting men who are believed to be criminals? Is Obama caught in a Catch-22 of Bush's devising?

In short, where is Dawn Johnsen?

Did you look under the bus?

From what we've seen of Obama's resistance to finding out the truth about the Bush DOJ and the torture policies, I'd think Johnsten would be the very last person he'd want to have as a legal watchdog. I mean, what are the chances she'd approve his latest proposal to let Guantanamo prisoners plead guilty to capital charges and be executed simply to avoid investigation of torture?

I'd bet he's changed his mind about her.