From Ted Rall

Why is it, exactly, that some prisoners “cannot be tried”?

The Old Grey Lady explains why Obama wants this “entirely new chapter in American law” in a boring little sentence buried a couple of paragraphs past the jump and a couple of hundred words down page A16: “Yet another question is what to do with the most problematic group of Guantánamo detainees: those who pose a national security threat but cannot be prosecuted, either for lack of evidence or because evidence is tainted.”

In democracies with functioning legal systems, it is assumed that people against whom there is a “lack of evidence” are innocent. They walk free. In countries where the rule of law prevails, in places blessedly free of fearful leaders whose only concern is staying in power, “tainted evidence” is no evidence at all. If you can’t prove that a defendant committed a crime — an actual crime, not a thoughtcrime — in a fair trial, you release him and apologize to the judge and jury for wasting their time.

That last paragraph succinctly puts another way how I was thinking about a different situation yesterday involving nebulous *evidence*.  

Update from Taibbi, who says Obama is smoking habeus corpus but not inhaling.

Now there’s this Gitmo business. This, folks, just isn’t that tough a call. The prison (and the much less publicized archipelago of hard sites in foreign countries where more terror suspects are held) was a symbol of everything wrong and stupid about the Bush administration. Snatching people up by force and dumping them in rocks on the middle of the ocean without due process is the kind of thing that was last done by “civilized” cultures back in the days of the Roman Empire; since then it’s been the exclusive province of sociopathic third-world dictators like Stalin and Mobutu Sese Seko. It was absolutely imperative, from a public relations standpoint if nothing else, that Obama immediately repudiate these practices, design some kind of due process to deal with the already incarcerated prisoners, and show the world that what happened during the Bush years was an insane aberration, a result of our having accidentally elected an emotionally retarded sadist to the White House.

Instead, Obama is on his way to doing exactly the wrong thing. He’s going to make a show of closing the base, but retain the underlying idea by keeping some of the prisoners in indefinite legal purgatory. In some ways this is worse than what Bush did, because Bush at least took a clear stand — he was nuts and thought this was the right thing to do. No matter how you look at Obama’s decision, it’s weighed somewhere along the line by political calculation. Either he thinks indefinite decision is right and he’s bowing to public appeals by closing the base, or else he thinks it’s wrong and is bowing to opposition outcry by maintaining the old policy.

It’s one thing to change your mind or play both sides of the fence on matters that don’t involve human lives, on theoretical/hypothetical campaign issues, but another thing to do it with actual incarcerated human beings as the key variable in the political equation.