as stated in the Update.

That may well be true, but there are those here (at least two of whom have been commenting today) who would point out what a pretty package Obama has used for this policy. It's just so much prettier when Obama says it...

I give Obama a few more months before he starts putting on soldier costumes and prancing around like George 'Tommy Tune' Bush.

The other part overlooked in the analysis of the Bush stance on indefinite detention even after a trial is that the procedure in the Bush military tribunals was that--in the unlikely event that a detainee was acquitted by a tribunal--the government was entitled to retry the detainee as many times as it chose until the government finally found a tribunal made up of persons who would convict the detainee. Last time that I looked into this (some time ago), I believe that the record for government "do-overs" for a particular detainee was 3.

This procedure--available to the government, but naturally not the detainee--could effectively be used by the government to indefinitely detain a prisoner as well.

"Maybe they hope to be constrained" - left coast engineer

I doubt it. And if they are hoping for others to contrain them, . . . they shouldn't be in charge.

obama has realized that Bush's policy was the correct one to follow. obama knows that we are stuck between a rock and a hard place when it comes to dealing with enemy combatants, soldiers without a home, bad guys, that we have captured.

We can't adequately try them (yes we have courts, no we have not followed police procedures on the battlefields of Afghanistan).

If we let them go, they kill Americans (some have, or at least have attempted to).

So the salonista is left with the dilemma;

A. Recognize that obama is following Bush policies in the effort to protect us.

B. Conclude that obama needs others to constrain him.

C. Conclude that obama is power mad.

I think the obvious answer is A. The other answers only lead to additional convoluted cockamamie theories from the left.

The various salonista paranoid theories re. Bush-Cheney motivations; oil, corporate greed, and various psychoses can't be applied to the messiah, . . . can they?

Obama is doing what Bush determined we needed to do; Afghanistan, Iraq, and the Agressive Pursuit and Obliteration of terrorists (wherever they may be found). . . gitmo is the least of it.

Terrorist suspects vulnerable to post-acquittal detention represent one special legal class: those less than equal in the eyes of the law, undeserving of true due process.

But complementary, and indeed critically linked, to this despised group of right-deprived prisoners is another group with exceptional legal status.

This second tier consists of those accorded extraordinary rights under the Bush/Obama legal regime, those CIA contractors, high government officials, and others who must never be exposed to the risk of conviction due to their privileged positions in government, and the potential embarassment, disgrace and legal jeopardy that would result from the exposure of their acts.

So in the lowest circle of judicial hell, legal pariahs languish who may be held even if acquitted after trial, while at the other extreme, the legally favored bask in triumphant serenity, secure that no accusations will ever be leveled against them even where abundant evidence exists of criminality.

Two distinct forms of outlier justice. Post-acquittal detention here. Pre-accusation immunity there.

All in the name of securing our liberties and freedoms.

This shouldn't surprise or shock anyone. Just as secrecy was needed to shield those perpetrating crimes in the name of the state, so secrecy must now forever shroud the detention of those unfairly victimized.

Because political expediency is not a Good. In DC, it's the only Good. And, while victims may make the best witnesses against those who brutalize them, they also, when alien, defamed and powerless, make the best scapegoats.

Whatever the origins of this foul doctrine, we should be clear on where its rationale leads. A justice system that allows secrecy to corrupt its protections will ultimately destroy the independence of its judiciary by ceding to the executive branch an unchallengeable, post-modern Divine Right: the blanket assertion of untestable Secret Knowledge, against which all other forms of evidence are powerless, and all counterclaims of inalienable or constitutional rights stand helpless and unprotected.

BoyKyote:

post-acquittal detention is nothing new

In Virginia, people are detained post-acquittal all the time: it's called "Not Guilty By Reason of Insanity." Although most are eventually reintegrated into the community, persons acquitted by insanity face the possibility of indefinite detention.

- - BoyKyote - - Wednesday, July 8, 2009 10:40 AM

__________

The U.S. Supreme Court has found that involuntary civil commitment in such cases is legal ONLY IF

1. the person is not merely extremely dangerous but also extremely mentally ill, and

2. the person is given medical treatment, in a medical setting (you can't merely detain the person in prison), and

3. the person has an opportunity to be released when no longer extremely dangerous and/or no longer extremely mentally ill.

* * * * *

Does that sound anything like the Administration's trial balloon?

From Army Reserve Lt. Col. Darrel Vandeveld's opening statement today:

I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as the legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants' basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded.

[...]

My concerns appear to have been vindicated by the Justice Department's Office of Legal Counsel. As the members of this committee are no doubt aware, the Wall Street Journal reported last week that the OLC [via its interim head, pending Dawn Johnsen's confirmation, David Barron] has issued an opinion finding that detainees tried by military commissions can claim certain constitutional rights, including the Constitution's prohibition on the use of statements obtained through coercive interrogations. Not only does this [OLC] opinion bind the Executive branch to uphold a higher standard of admissibility of evidence than that afforded by either the current military commission rules or the Senate Armed Services Committee's legislation, but it also raises the specter of eventual invalidation by the Supreme Court of any prosecution of a detainee now held at Guantanamo.

At the very least, the OLC opinion should caution legislators that the Senate Armed Services Committee proposal, which permits the use of coerced evidence, is likely to spur protracted litigation and result in even more delay. And at this point, we cannot afford to delay justice any longer. Seven years of detention without charge is long enough. It is time for government to charge the individuals it is going to charge before regularly constituted Article III courts or military courts-martial, and resettle or repatriate the others. Indefinite detention of those imprisoned at Guantanamo without charge is anathema both to U.S. constitutional values and to the rule of law.

[...]

I began to realize that the problems with Jawad's case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor's docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora's box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.

Evidence from U.S. Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in U.S. custody in Afghanistan. [...snip...] Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into U.S. custody. Field reports, and examinations by US medical personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn't committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime.

In this way, I came to realize that Mr. Jawad had probably been telling the truth to the court from the very beginning.

[...]

The problems manifest themselves in at least three ways, each of which I witnessed during my time at Guantanamo and which would remain problematic under the present proposal. They are, first, the rules of admissibility of evidence, including the relaxation of restrictions on the admissibility of evidence obtained through coercion and of hearsay; second, the gathering and handling of evidence, including legal and institutional restrictions on the disclosure of sensitive or classified evidence to the defense; and third, institutional deficiencies, including the insufficient experience and qualifications of both judges and counsel, and the inadequate provision of resources to the defense.

- Lt. Col. Darrel Vandeveld, 7/8/2009

http://judiciary.house.gov/hearings/pdf/Vandeveld090708.pdf

From some excellent reporting about today's House Judiciary subcommittee hearing, from the Pittsburgh Post-Gazette's Dennis Roddy:

Chairman Jerrold Nadler, in opening remarks, left little doubt that he favored the elimination of the commissions, and one witness, U.S. Rep. Adam Schiff, D-Calif., called on Congress to enact regulations that would move the prosecution of enemy combatants to military courts martial under the Uniform Code of Military Justice.

Col. Vandeveld, a Pennsylvania state prosecutor and Army reservist who has served in Iraq, Bosnia and Afghanistan, agreed with that assessment.

"The military commissions cannot be fixed because their very creation ... can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation," Col. Vandeveld said.

[...]

Col. Wingard said his client, the son of a wealthy Kuwaiti family, had traveled to Afghanistan to do charity work required of his Muslim faith. He said Mr. Al-Kandari was subjected to sleep deprivation and subjected to extreme cold while strapped naked to a floor at Guantanamo. Col. Wingard said his client was beaten with a chain.

"He was given the full works, an enhanced interrogation," Col. Wingard said.

Since objecting to the commission system, the Air Force promoted Col. Wingard from the rank of major to lieutenant colonel, evidence, he said, that the military itself is displeased with the commission trial system imposed on it by the Department of Justice.

"The military's never been behind anything but the Geneva Convention," Col. Wingard said.

Military prosecutors have so far declined to press a case against Mr. Al-Kandari. He remains in custody at Guantanamo.

http://www.post-gazette.com/pg/09189/982508-100.stm