Cross-posted at Balkinization
The good news is that the Obama administration appears to be genuinely wrestling with the problems that follow from reverse-engineering systems of justice to guarantee continued detention. The prior administration didn’t bother with legal window dressing, let alone worry about the constitutional shortcomings of such an approach. The bad news is that the Obama administration still thinks it can overcome those problems if it gives detainees a carefully circumscribed menu of rights that falls somewhere between no rights at all (the Bush approach) and the rights they would get in any existing American system of justice.
The preliminary report of the task force, which focuses on the use of military commissions, doesn’t reveal any of this internal struggle. This is a public document, intended for public consumption. It doesn’t contain any real analysis or recommendations; those presumably appear in other, non-public documents. Instead, it sets forth the decisions already made by the President (and already made public) and justifies them. It’s an advocacy piece, pure and simple.
Read the rest here.