Here’s something I just don’t understand.

There’s absolutely no good reason for Obama not to close Guantanamo immediately and simply try the detainees in our already-extant courts of law. That’s how we’ve convicted all sorts of accused terrorists in the past. The only reason not to do so is a desire to disregard — violate — these long-standing American principles and instead create a new process that allows torture-obtained evidence to be used.- Glenn Greenwald

I, at least, have never suggested that everyone that is detained at Guantanamo Bay (or in secret prisons) is innocent. I have merely noted that many of them are, and that decisions made by the Bush administration have made it difficult or impossible to convict the rest.

What we have is several dozen people in our custody that we do not want to release but who we may not be able successfully prosecute. In the ordinary course of things, we release bad guys when we screw up the handling of their evidence. Or, when we prosecute them using tainted evidence, the judge and/or jury acquits them. Unfortunately, some of the characters we have in custody, like alleged 9/11 mastermind Khalid Sheikh Mohammed, are not only extremely dangerous but (if the allegations are true) have the blood of nearly 3,000 Americans on their hands.

Now, let’s go back to Greenwald’s point.

There’s absolutely no good reason for Obama not to close Guantanamo immediately and simply try the detainees in our already-extant courts of law.

I don’t know that there is any great reason to keep Guantanamo Bay open for the next 100 days, but the underlying point seems to be that we will not be able to figure the proper way to disposition the cases of the people being held there in a mere three months. I know we have been in discussions with the Australians, the Portuguese, and others, to see if they will accept some of the Guantanamo prisoners. Last I heard, we’re having difficulty negotiating terms. As for the individuals that we do not want to release (or release into someone else’s custody), we do need to prosecute them in some manner. However, there are at least a handful of cases that may be unprosecutable in normal courts of law. Our choice, in those cases, would seem to be between prosecuting them and losing, or setting up some kind of patchwork system to make up for the fact that the Bush administration totally screwed up their cases.

The debate is over how to avoid releasing extremely dangerous people (and what to do with those whom we do release). In answer to Greenwald, I’d like to point out that the Obama administration faces the same choice any elected judge faces when sentencing or parole board faces when setting someone free. If a criminal gets out of jail early and commits another crime, there is a high political cost. If they kill someone, there is a high moral cost. So, that is one good reason to think twice before trying (at least some) Guantanamo cases in extant courts of law.

Another good reason to hesitate is the competing claims to justice emanating from the victims of the crimes committed by some of the Guantanamo Bay detainees. What do we say to the relatives of 9/11 victims if we cannot bring a successful prosecution against the people that planned those attacks? Does their right to justice get wiped out by the waterboarding decision of George W. Bush and Dick Cheney?

Because the actual number of cases that fit into this category is actually quite small (probably less than dozen), it should be possible to craft some kind of one-time-only judicial procedure to deal with it. For example, we could allow evidence to be presented that was obtained illegally in those cases, provided that we allow the defendants to present evidence of the unreliability of such evidence. They should also be allowed to point out precisely which evidence would normally be excluded, and why. In other words, the jury would be fully cognizant of what evidence is tainted, why it is tainted, and why it is not normally allowed in a court of law.

It’s obviously not an ideal solution, but neither is releasing the 9/11 plotters. Whatever the Obama administration ultimately decides, I agree with Glenn that it would be a mistake not to deal with the other side of this. If Bush and Cheney had not committed crimes against humanity, we wouldn’t be saddled with these problems. Recognizing the need to punish Bush and Cheney is the flip-side of cleaning up after their mess with an imperfect judicial solution.

But it doesn’t surprise or bother me that the Obama administration is going to take a little time to work through the issues. I do not take it as a centrist move. I do not understand why Glenn thinks it is somehow a thumb in the eye to liberals. He promised to close Guantanamo, and he will. It will just take a little time.