Glenn Reynolds reports on the court decision on Jose Padilla with links to the opinions. Here's the conundrum: How do you give a normal prosecution to someone if the evidence is comprised of secrets and information from foreign governments? The second they get into regular court (if it gets that far), the defense team starts subpoenaing witnesses and documents. Then the government has to make a decision. Is it worth burning all those sources and exposing all those capabilities (assuming foreign sources even cooperate) for the prosecution of this one person? If not, they can't prosecute and that's that.

That's what's effing up the Moussaui prosecution. That's how Ollie North beat some of the rap back in the day, IIRC.

So the people crowing about civil rights and secret prosecutions, important and noble concerns for sure, need to walk it through and understand what road they're leading us down. How are we going to handle the prosecution of people who we simply cannot prosecute in open court? Simply letting them go is not a realistic option.

Padilla has been in the hole too long for him to just be let go as long as there are still options available to the government. Expect more Ashcroft vilification soon.