So Posner of course tries to toss in his judicial activist agenda by suggesting that perhaps our civillian court system grants too much protection to the accused. What the whole discussion presumes - from the Lithwick and Bazelon on through Posner's pseudo-facsim - is that it is even reasonable to allow for the relaxation of procedural protections simply because The Government asserts that some of the evidence is "sensitive".

The standard of justice often cited as the basis for the US Criminal system is Blackstone's formulation that it is better for 10 guilty to go free than to have a single innocent rot in jail. Now we already have the Seton Hall studies that suggest that even that most obnoxious of charges - simply ASSOCIATION with a terrorist enterprise - fails for the majority of the 517 prisonser. Which suggests that we have already dramatically failed the Blackstone ratio.

However its important to remember that Blackstone was a British jurist. When it came time to create the American system, we used that as a basis, but we also considered that Blackstone's recommendations on placing the right to declare war in the hands of the Executive to be too great a concentration of power. Thus the "Founding Fathers" took the power of the purse, declaration of war and veto override and put it in the hands of the competing branch of government. IOW its fair to conclude that the Founding Fathers found Blackstone to be too deferential to power.

Hence it matters quite a bit that among the Founding Fathers no less than Benjamin Franklin suggested that the proper ratio should be more like 100:1.

If we apply the 100:1 ratio we should logically expect to release ALL of the Gitmo prisoners. Why? Because we have already seen more than 5 detainees completely exhonorated of any charges.

So how does this apply to the question of relaxed procedural protections? Simple. There should be none. If the US Government cannot make a case against an individual that has been rendered to them (and again that's what the evidence suggests - that most came into US custody via extrajudicial rendering from the Pakistani secret police) and then held effectively under a Writ of Attainder in open court with open evidence that we as citizens can review, then The Government should release the individual. PERIOD.

Will this expose the USA to possible future attacks? Most likely. But what price of "precious liberties" are we going to sacrifice for that temporary measure of security?

How cowardly are we as a nation that when danger looms even in the slightest, we go running for cover and allow The Government to ignore even the most basic of Constitutional protections of our rights