Kleiman is an expert at criminal law policy

based on his own statements.

i think you're actually being kind here:

This is facile sophistry.

it really doesn't even rise to that level. using mr. kleiman's (and apparently BTD's, unless i misread him) "logic", we haven't (and never will) sufficient jail space; we know these guys are gang members (enemy fighters), we just can't convict them of any actual crime.

"preventive detention" was used by tyrants (read: king george III) to get annoying people, who'd committed no actionable offense (or at least couldn't be proved to have) out of their hair.

this was explicitly rejected by the authors of our constitution, in the bill of rights, and has absolutely no credible basis historically or judicially in the US. the only exception is for POW's, in time of war.

Today, I read in the NYT that

The director of the Central Intelligence Agency, Leon E. Panetta, has told the House Intelligence Committee in closed-door testimony that the C.I.A. concealed "significant actions" from Congress from 2001 until late last month, seven Democratic committee members said.

In a June 26 letter to Mr. Panetta discussing his testimony, Democrats said that the agency had "misled members" of Congress for eight years about the classified matters, which the letter did not disclose. "This is similar to other deceptions of which we are aware from other recent periods," said the letter, made public late Wednesday by Representative Rush D. Holt, Democrat of New Jersey, one of the signers.

In an interview, Mr. Holt declined to reveal the nature of the C.I.A.'s alleged deceptions,. But he said, "We wouldn't be doing this over a trivial matter."

Which is bad enough, and more proof that the legislative branch was probably never acting with enough information in hand to do the job they were charged with.

But then I read this:

In a related development, President Obama threatened to veto the pending Intelligence Authorization Bill if it included a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight -- the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees.

A White House statement released on Wednesday said the proposed expansion of briefings would undermine "a long tradition spanning decades of comity between the branches regarding intelligence matters." Democrats have complained that under President George W. Bush, entire programs were hidden from most committee members for years.

And I have to wonder, what is it that Obama is afraid of?  Is he taking the Bush/Cheney position that the less the oversight committees know about what the intelligence agencies are doing, the better?  If this is his belief, then he is just as much of a rogue president as Bush was, which makes him just as dangerous and means there is no way in hell he should be given - or should be allowed to take - the power to indefinitely detain anyone, much less anyone who got a "trial" and had the misfortune to be acquitted so the US government could continue to keep them locked up forever and a day.  

The president who doesn't want too many people to be in on the dealings of the agencies that the Congress is charged with overseeing cannot and should not be trusted to put together a workable detention program.